Of course it was the 7th cavalry at Nogun Ri

Even the rightest wing-est extremist in Texas don’t hold a candle to Some Colorado Wingnuts, the ones who call Natives “prairie niggers” or “wagon burners”, especially when any negative reviews of the Seventh Cavalry massacres. Like Wounded knee, a vengeance quest for Custer and a bunch of his homicidal lunatic troopers got their own asses sent to Hell. And before that, at the Little Ouachita, murdering men, women and children at a mostly Cheyenne winter encampment. Must not criticize heroic asswipes like Custer. Oh, that song they adopted, Garryowen, that’s about a really rowdy  custom (performed by the lads of Garryowen, a town in Ireland) of getting drunk and beating up on cops. Anyhoo, I got this from Wiki because it’s easy. Sue me. It’s about another massacre and why the people of Korea aren’t as enthusiastic about the U.S. Big Brother as the South Korean Government. Hint: it’s because the corrupt U.S. Government pays the S. Korean Puppet Government to pretend to like us.

The No Gun Ri massacre (Hangul??? ??? ?? ??; Hanja?????????; RRNogeun-ri minganin haksal sageon) occurred on July 26–29, 1950, early in the Korean War, when an undetermined number of South Korean refugees were killed in a U.S. air attack and by small- and heavy-weapons fire of the 7th U.S. Cavalry at a railroad bridge near the village of Nogeun-ri (Korean: ???), 100 miles (160 km) southeast of Seoul. In 2005, a South Korean government inquest certified the names of 163 dead or missing and 55 wounded, and added that many other victims’ names were not reported. The South Korean government-funded No Gun Ri Peace Foundation estimated in 2011 that 250–300 were killed, mostly women and children.

The incident was little-known outside Korea until publication of an Associated Press (AP) story in 1999 in which 7th Cavalry veterans corroborated survivors’ accounts. The AP also uncovered declassified U.S. Army orders to fire on approaching civilians because of reports of North Korean infiltration of refugee groups. Some details were disputed, but the massacre account was found to be essentially correct. In 2001, the U.S. Army conducted an investigation and, after previously rejecting survivors’ claims, acknowledged the killings, but described the three-day event as “an unfortunate tragedy inherent to war and not a deliberate killing”. The army rejected survivors’ demands for an apology and compensation. United States President Bill Clinton issued a statement of regret, adding the next day that “things happened which were wrong”.

South Korean investigators disagreed with the U.S. report, saying that they believed that 7th Cavalry troops were ordered to fire on the refugees. The survivors’ group called the U.S. report a “whitewash”. The AP later discovered additional archival documents showing that U.S. commanders ordered troops to “shoot” and “fire on” civilians at the war front during this period; these declassified documents had been found but not disclosed by the Pentagon investigators. American historian Sahr Conway-Lanz reported that among the undisclosed documents was a letter from the U.S. ambassador in South Korea stating that the U.S. military had adopted a theater-wide policy of firing on approaching refugee groups. Despite demands, the U.S. investigation was not reopened.

Prompted by the exposure of No Gun Ri, survivors of similar alleged incidents from 1950–51 filed reports with the Seoul government. In 2008, an investigative commission said more than 200 cases of alleged large-scale killings by the U.S. military had been registered, mostly air attacks

If you’re a vet from that arena, and was above the rank of captain at the time, I won’t give two thirds of a sex act about your damn feelings.

Last cruise of pirate chasers Juergen Kantner and Sabine Merz, a geography

Lapu-Lapu beats Magellan
There’s something fishy about the story of German sailor Juergen Gustav Kantner, whose beheading video was just released by Abu Sayyaf rebels (ASG). Apparently Kantner, 70, had been kidnapped by Somali pirates before this. What are the chances, considering all the gin joints and circumnavigators these days? In a further coincidence, the umpteen sensational articles are all short on details, including the dead woman found on Kantner’s boat, her identity discarded by even the media. Why? Her name was Sabine Isne Merz, 59, sometimes cited as Sabina Wetch. She and husband Kantner were ransomed in Somalia in August 2008 after 52 days in captivity. This time Merz’s body was found aboard the Bermuda-rigged “Rockall”, but a whole Sulu Sea away from where the couple was allegedly captured.

I’d like to lay out the geography of what’s been revealed so far, so emerging facts will more easily shake themselves out online.

According to the ASG, the Germans were seized in November 2016 while sailing on Tanjong Luok Pisuk (spelled Luuk in media reports), an inlet on the Northwest coast of Borneo, in the state of Sabah, Malaysia. Then, halfway down Sabah, Merz was purportedly killed in a shootout with her captors off Tawi-Tawi Isand in the Pangutaran province of Western Mindanao, the Philippines. Her body was found beside a shotgun on the Rockall, abandoned off Laparan Island in Sulu province. Some reports say the sailboat was moored, some say adrift. Though Tawi-Tawi and Sulu belong to the Philippines, they are governed by the Autonomous Region of Muslim Mindanao (ARMM), from which today’s gruesome video is thought to originate.

Juergen Kantner met his end at the edge of a curved blade wielded by Muslim rebels in the Philippines’ long contested province of Mindanao. A nearby indigenous resistance in Cebu, under the leadership of Lapu-Lapu five hundred years ago, stopped explorer Ferdinand Magellan halfway round the circumnavigation for which he’s given credit because on a previous trip he’d come around from the other direction to “discover” the Malay Archipelago. By coincidence, Kanter and Merz almost bridged the gap.

Colo. US District Court judge enjoins DIA to limit restriction of free speech (grants our preliminary injunction!)

Plaintiffs Nazli McDonnell and Eric Verlo
DENVER, COLORADO- If your civil liberties have ever been violated by a cop, over your objections, only to have the officer say “See you in court”, this victory is for YOU! On January 29 we were threatened with arrest for protesting the “Muslim Ban” at Denver International Airport. We argued that our conduct was protected speech and that they were violating our rights. They dismissed our complaints with, in essense: “That’s for a court to decide.” And today IT HAS! On Feb 15 we summoned the cops to federal court and this morning, Feb 22, US District Court Judge William Martinez granted our preliminary injunction, severely triming DIA’s protest permit process. In a nutshell: no restrictions on signs, size of assemblies or their location within the main terminal (so long as the airport’s function is not impeded). Permits are still required but with 24 hours advance notice, not seven days. Below is Judge Martinez’ 46-page court order in full:

Document 29 Filed 02/22/17 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 17-cv-0332-WJM-MJW

NAZLI MCDONNELL, and
ERIC VERLO,

Plaintiffs,

v.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ,
in his individual and official capacity, and?
DENVER POLICE SERGEANT VIRGINIA QUIÑONES,
in her individual and official capacity,

Defendants.

________________________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION IN PART
________________________________________________________

Plaintiffs Nazli McDonnell (“McDonnell”) and Eric Verlo (“Verlo”) (together, “Plaintiffs”) sue the City and County of Denver (“Denver”), Denver Police Commander Antonio Lopez (“Lopez”) and Denver Police Sergeant Virginia Quiñones (“Quiñones”) (collectively, “Defendants”) for allegedly violating Plaintiffs’ First and Fourteenth Amendment rights when they prevented Plaintiffs from protesting without a permit in the Jeppesen Terminal at Denver International Airport (“Airport” or “Denver Airport”). (ECF No. 1.) Currently before the Court is Plaintiffs’ Motion for Preliminary Injunction, which seeks to enjoin Denver from enforcing some of its policies regarding demonstrations and protests at the Airport. (ECF No. 2.) This motion has been fully briefed (see ECF Nos. 2, 20, 21, 23) and the Court held an evidentiary hearing on February 15, 2017 (“Preliminary Injunction Hearing”).

For the reasons explained below, Plaintiffs’ Motion is granted to the following limited extent:

• Defendants must issue an expressive activity permit on twenty-four hours’ notice in circumstances where an applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen seven days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the permit applicant prevented timely filing of the application; ?

• Defendants must make all reasonable efforts to accommodate the applicant’s preferred demonstration location, whether inside or outside of the Jeppesen Terminal, so long as the location is a place where the unticketed public is normally allowed to be; ?

• Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Denver Airport Regulation 50.02-8) within the Jeppesen Terminal; and ?

• Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot. ??

Any relief Plaintiffs seek beyond the foregoing is denied at this phase of the case. In particular, the Court will not require the Airport to accommodate truly spontaneous demonstrations (although the Airport remains free to do so); the Court will not require the Airport to allow demonstrators to unilaterally determine the location within the Jeppesen Terminal that they wish to demonstrate; and the Court will not strike down the Airport’s usual seven-day notice-and-permit requirement as unconstitutional in all circumstances.

I. FINDINGS OF FACT

Based on the parties’ filings, and on the documentary and testimonial evidence received at the evidentiary hearing, the Court makes the following findings of fact for purposes of resolving Plaintiffs’ Motion.?

A. Regulation 50

Pursuant to Denver Municipal Code § 5-16(a), Denver’s manager of aviation may “adopt rules and regulations for the management, operation and control of [the] Denver Municipal Airport System, and for the use and occupancy, management, control, operation, care, repair and maintenance of all structures and facilities thereon, and all land on which [the] Denver Municipal Airport System is located and operated.” Under that authority, the manager of aviation has adopted “Rules and Regulations for the Management, Operation, Control, and Use of the Denver Municipal Airport System.” See https://www.flydenver.com/about/administration/rules_regulations (last accessed Feb. 16, 2017). Part 50 of those rules and regulations governs picketing, protesting, soliciting, and similar activities at the Airport. See https://www.flydenver.com/sites/default/files/rules/50_leafleting.pdf (last accessed Feb. 16, 2017). The Court will refer to Part 50 collectively as “Regulation 50.”

The following subdivisions of Regulation 50 are relevant to the parties’ current dispute:

Regulation 50.03: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO [of the Airport] or his or her designee. . . .” ?

Regulation 50.04-1: “Any person or organization desiring to leaflet, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, shall complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought and no earlier than thirty (30) days prior to commencement of the activity. The permit application shall be submitted using the form provided by the Airport. The applicant shall provide the name and address of the person in charge of the activity, the names of the persons engaged in the activity, the nature of the activity, each location at which the activity is proposed to be conducted, the purpose of the activity, the hours during which the activity is proposed to be conducted, and the beginning and end dates of such activity. A labor organization shall also identify the employer who is the target of the proposed activity.”

Regulation 50.04-3: “Upon presentation of a complete permit application ?and all required documentation, the CEO shall issue a permit to the applicant, if there is space available in the Terminal, applying only the limitations and regulations set forth in this Rule and Regulation . . . . Permits shall be issued on a first come-first served basis. No permits shall be issued by the CEO for a period of time in excess of thirty-one (31) days.” ?

Regulation 50.04-5: “In issuing permits or allocating space, the CEO shall not exercise any discretion or judgment regarding the purpose or content of the proposed activity, except as provided in these Rules and Regulations. The issuance of a permit is a strictly ministerial function and does not constitute an endorsement by the City and County of Denver of any organization, cause, religion, political issue, or other matter.” ?

Regulation 50.04-6: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.” ?

Regulation 50.08-12: “Individuals and organizations engaged in leafleting, solicitation, picketing, or other speech related activity shall not: * * * [w]ear or carry a sign or placard larger than one foot by one foot in size . . . .” (underscoring in original).

Regulation 50.09: “Picketing not related to a labor dispute is prohibited in ?all interior areas of the Terminal and concourses, in the Restricted Area, and on all vehicular roadways, and shall not be conducted by more than two (2) persons at any one location upon the Airport.” ?

Regulation 50.02-8: “Picketing shall mean one or more persons marching or stationing themselves in an area in order to communicate their position on a political, charitable, or religious issue, or a labor dispute, by displaying one or more signs, posters or similar devices” (underscoring in original).

The Airport receives about forty-five permit requests a year. No witness at the Preliminary Injunction Hearing (including Airport administrators who directly or indirectly supervise the permit process) could remember an instance in which a permit had been denied.

?Although there is no formal written, prescribed procedure for requesting expedited treatment of permit requests, the Airport not infrequently processes such requests and issues permits in less than seven days. Last November, less than seven days before Election Day, the Airport received a request from “the International Machinists” 1 to stage a demonstration ahead of the election. The Airport was able to process that request in two days and thereby permit the demonstration before Election Day.
?
——————————
1 Presumably, the International Association of Machinists and Aerospace Workers. ?
———————

B. The Executive Order

On Friday, January 27, 2017, President Trump signed Executive Order 13769 (“Executive Order”). See 82 Fed. Reg. 8977. The Executive Order, among other things, established a 90-day ban on individuals from seven Muslim-majority countries from entering the United States, a 120-day suspension of all refugee admissions, and an indefinite suspension of refugee admissions from Syria. Id. §§ 3(c), 5(a), 5(c). “The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained.” Washington v. Trump, ___ F.3d. ___, ___, 2017 WL 526497, at *2 (9th Cir. Feb. 9, 2017). As is well known, demonstrators and attorneys quickly began to assemble at certain American airports, both to protest the Executive Order and potentially to offer assistance to travelers being detained upon arrival.?

C. The January 28 Protest at the Denver Airport

Shortly after 1:00 p.m. on the following day—Saturday, January 28, 2017— Airport public information officer Heath Montgomery e-mailed Defendant Lopez, the police commander responsible for Denver’s police district encompassing the Airport. Lopez was off-duty at the time. Montgomery informed Lopez that he had received media inquiries about a protest being planned for the Airport later that day, and that no Regulation 50 permit had been issued for such a protest.

Not knowing any details about the nature or potential size of the protest, and fearing the possibility of “black bloc” and so-called “anarchist activities,” Lopez coordinated with other Denver Police officials to redeploy Denver Police’s gang unit from their normal assignments to the Airport. Denver Police also took uniformed officers out of each of the various other police districts and redeployed them to the Airport. Lopez called for these reinforcements immediately in light of the Airport’s significant distance from any other police station or normal patrol area. Lopez knew that if an unsafe situation developed, he could not rely on additional officers being able to get to the Airport quickly.

Through his efforts, Lopez was eventually able to assemble a force of about fifty officers over “the footprint of the entire airport,” meaning inclusive of all officers already assigned to the Airport who remained on their normal patrol duties. Lopez himself also came out to the Airport.

In the meantime, Montgomery had somehow learned of an organization known as the Colorado Muslim Connection that was organizing protesters through Facebook. Montgomery reached out to this organization through the Airport’s own Facebook account and informed them of Regulation 50’s permit requirement. (Ex. 32.) One of the Colorado Muslim Connection’s principals, Nadeen Ibrahim, then e-mailed Montgomery “to address the permit.” (Ex. 30.) Ibrahim told Montgomery:

The group of people we have will have a peaceful assembly carrying signs saying welcome here along with a choir and lots of flowers. Our goal is to stand in solidarity with our community members that have been detained at the airports since the signing of the executive order, though they do have active, legal visas/green cards. Additionally, we would like to show our physical welcoming presence for any newly arriving Middle Eastern sisters and brothers with visas. We do not intend to block any access to [the Airport].

(Id.) Montgomery apparently did not construe this e-mail as a permit request, or at least not a properly prepared one, and stated that “Denver Police will not allow a protest at the airport tonight. We are willing to work with you like any other group but there is a formal process for that.” (Id.)

Nonetheless, protesters began to assemble in the late afternoon and early evening in the Airport’s Jeppesen Terminal, specifically in the multi-storied central area known as the “Great Hall.” The Great Hall is a very large, rectangular area that runs north and south. The lower level of the Great Hall (level 5) has an enormous amount of floor space, and is ringed with offices and some retail shops, but the floor space itself is largely taken up by security screening facilities for departing passengers. The only relatively unobstructed area on level 5 is the middle third, which is currently designed primarily as a location for “meeters-and-greeters,” i.e., individuals waiting for passengers arriving from domestic flights who come up from the underground train connecting the Jeppesen Terminal with the various concourses. There is a much smaller meeters-and-greeters waiting area at the north end of level 5, where international arrivals exit from customs screening.

The upper level of the Great Hall (level 6) has much less floor space than level 5 given that it is mostly open to level 5 below. It is ringed with retail shops and restaurants. At its north end is a pedestrian bridge to and from the “A” concourse and its separate security screening area.

Given this design, every arriving and departing passenger at the Airport (i.e., all passengers except those only connecting through Denver), and nearly every other person having business at the airport (including employees, delivery persons, meeters-and-greeters, etc.), must pass through some portion of the Great Hall. In 2016, the Airport served 58.3 million passengers, making it the sixth busiest airport in the United States and the eighteenth busiest in the world. Approximately 36,000 people also work at the airport.

The protesters who arrived on the evening of January 28 largely congregated in the middle third of the Great Hall (the domestic-arrivals meeter-and-greeter area). The protesters engaged in singing, chanting, praying, and holding up signs. At least one of them had a megaphone.

The size of the protest at its height is unclear. The witnesses at the evidentiary hearing gave varying estimates ranging from as low as 150 to as high as 1,000. Most estimates, however, centered in the range of about 200. Lopez, who believed that the protest eventually comprised about 300 individuals, did not believe that his fifty officers throughout the Airport were enough to ensure safety and security for that size of protest, even if he could pull all of his officers away from their normal duties.

Most of the details of the January 28 protest are not relevant for present purposes. Suffice it to say that Lopez eventually approached those who appeared to be the protest organizers and warned them multiple times that they could be arrested if they continued to protest without a permit. Airport administration later agreed to allow the protest to continue on “the plaza,” an area just outside the Jeppesen Terminal to its south, between the Terminal itself and the Westin Hotel. Protesters then moved to that location, and the protest dispersed later in the evening. No one was arrested and no illegal activity stemming from the protest (e.g., property damage) was reported, nor was there any report of disruption to travel operations or any impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal.

D. The January 29 Protest at the Denver Airport

Plaintiffs disagree strongly with the Executive Order and likewise wished to protest it, but, due to their schedules, were unable to participate in the January 28 protest. They decided instead to go to the Airport on the following day, Sunday, January 29. They came that afternoon and stationed themselves at a physical barrier just outside the international arrival doors at the north end of the Great Hall, level 5. They each held up a sign of roughly poster board size expressing a message of opposition to the Executive Order and solidarity with those affected by it. (See Exs. 2, 4, M.)

Plaintiffs were soon approached by Defendant Quiñones, who warned them that they could be arrested for demonstrating without a permit. Plaintiffs felt threatened, as well as disheartened that they could not freely exercise their First Amendment rights then and there. Plaintiffs felt it was important to be demonstrating both at that particular time, given the broad news coverage of the effects of the Executive Order, and at that particular place (the international arrivals area), given a desire to express solidarity with those arriving directly from international destinations—whom Plaintiffs apparently assumed would be most likely to be affected by the Executive Order in some way.

Plaintiffs left the Airport later that day without being arrested, and without incident. They have never returned to continue their protest, nor have they applied for a permit to do so.

E. Permits Since Issued

The airport has since issued permits to demonstrators opposed to the Executive Order. At least one of these permits includes permission for four people to demonstrate in the international arrivals area, where Plaintiffs demonstrated on January 29.

II. REQUESTED INJUNCTION

Plaintiffs have never proposed specific injunction language. In their Motion, they asked for “an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.” (ECF No. 2 at 4.) At the Preliminary Injunction Hearing, Plaintiffs’ counsel asked the Court to enjoin Defendants (1) “from arresting people for engaging in behavior that the plaintiffs or people similarly situated were engaging in,” (2) from enforcing Regulation 50.09 (which forbids non- labor demonstrators from holding up signs within the Jeppesen Terminal), and (3) from administering Regulation 50 without an “exigent circumstances exception.” Counsel also argued that requiring a permit application seven days ahead of time is unconstitutionally long in any circumstance, exigent or not.

III. LEGAL STANDARD

A. The Various Standards

In a sense, there are at least three preliminary injunction standards. The first, typically-quoted standard requires: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and (4) that the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).

If, however, the injunction will (1) alter the status quo, (2) mandate action by the defendant, or (3) afford the movant all the relief that it could recover at the conclusion of a full trial on the merits, a second standard comes into play, one in which the movant must meet a heightened burden. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc). Specifically, the proposed injunction “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” and “a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Id.

On the other hand, the Tenth Circuit also approves of a

modified . . . preliminary injunction test when the moving party demonstrates that the [irreparable harm], [balance of harms], and [public interest] factors tip strongly in its favor. In such situations, the moving party may meet the requirement for showing [likelihood of] success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.

Verlo v. Martinez, 820 F.3d 1113, 1128 n.5 (10th Cir. 2016). This standard, in other words, permits a weaker showing on likelihood of success when the party’s showing on the other factors is strong. It is not clear how this standard would apply if the second standard also applies.

In any event, “a preliminary injunction is an extraordinary remedy,” and therefore “the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

B. Does Any Modified Standard Apply?

The status quo for preliminary injunction purposes is “the last peaceable uncontested status existing between the parties before the dispute developed.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation marks omitted). By asking that portions of Regulation 50 be invalidated, Plaintiffs are seeking to change the status quo. Therefore they must make a stronger-than-usual showing on likelihood of success and the balance of harms.

IV. ANALYSIS

A. Irreparable Harm as it Relates to Standing

Under the circumstances, the Court finds it appropriate to begin by discussing the irreparable harm element of the preliminary injunction test as it relates Plaintiffs’ standing to seek an injunction.

Testimony at the Preliminary Injunction Hearing revealed that certain groups wishing to protest the Executive Order have since applied for and obtained permits. Thus, Plaintiffs could get a permit to demonstrate at the airport on seven days’ advance notice—although Regulation 50.09 would still prohibit them from demonstrating by wearing or holding up signs. In addition, as discussed in more detail below (Part IV.B.3.c), Plaintiffs could potentially get a permit to hold a protest parade on public streets in the City and County of Denver with as little as 24 hours’ notice. And as far as the Court is aware, the two Plaintiffs may be able to stand on any public street corner and hold up signs without any prior notice or permit requirement. Thus, Plaintiffs’ alleged irreparable harm must be one or both of the following: (1) the prospect of not being able to demonstrate specifically at the airport on less than seven days’ notice, or (2) the inability to picket in opposition to the government action they oppose—that is, the inability to hold up “signs, posters or similar devices” while engaging in expressive activity at the airport. The Court finds that the second of these options is a fairly traditional allegation of First Amendment injury—even if they do apply for and obtain a permit, by the express terms of Regulation 50.09 Plaintiffs will not be allowed to carry or hold up signs, posters, or the like. The first option, however, requires more extensive discussion and analysis.

The rapidly developing situation that prompted Plaintiffs to go to the Airport on January 29 has since somewhat subsided. The Executive Order remains a newsworthy topic, but a nationwide injunction now prevents its enforcement, see Washington, ___ F.3d at ___, 2017 WL 526497, at *9, and—to the Court’s knowledge—none of the most urgent effects that led to airport-based protests, such as individuals being detained upon arrival, have since repeated themselves. Nonetheless, the circumstances that prompted this lawsuit reveal a number of unassailable truths about “freedom of speech . . . [and] the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I.

One indisputable truth is that the location of expressive activity can have singular First Amendment significance, or as the Tenth Circuit has pithily put it: “Location, location, location. It is cherished by property owners and political demonstrators alike.” Pahls v. Thomas, 718 F.3d 1210, 1216 (10th Cir. 2013). The ability to convey a message to a particular person is crucial, and that ability often turns entirely on location.

Thus, location has specifically been at issue in a number of First Amendment decisions. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (abortion protesters’ ability to approach abortion clinic patrons within a certain distance); Pahls, 718 F.3d at 1216–17 (protesters’ ability to be in a location where the President could see them as his motorcade drove past); Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1218–19 (10th Cir. 2007) (peace activists’ ability to be near a hotel and conference center where a NATO conference was taking place); Tucker v. City of Fairfield, 398 F.3d 457, 460 (6th Cir. 2005) (labor protesters’ ability to demonstrate outside a car dealership); Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d 205, 207–08 (D. Conn. 2011) (animal rights protesters’ ability to protest near a circus), aff’d sub nom. Zalaski v. City of Bridgeport Police Dep’t, 475 F. App’x 805 (2d Cir. 2012).

Another paramount truth is that the timing of expressive activity can also have irreplaceable First Amendment value and significance: “simple delay may permanently vitiate the expressive content of a demonstration.” NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984); see also American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”); Church of Am. Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (“given that . . . political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“The five-day notice requirement restricts a substantial amount of speech that does not interfere with the city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing inconvenience to the public.”).

This case provides an excellent example of this phenomena given that —whether intentionally or not— the President’s announcement of his Supreme Court nomination on January 31 (four days after signing the Executive Order) permitted the President to shift the media’s attention to a different topic of national significance. Thus, the inability of demonstrators to legally “strike while the iron’s hot” mattered greatly in this instance. Cf. City of Gary, 334 F.3d at 682 (in the context of a 45-day application period for a parade, noting that “[a] group that had wanted to hold a rally to protest the U.S. invasion of Iraq and had applied for a permit from the City of Gary on the first day of the war would have found that the war had ended before the demonstration was authorized”).

These principles are not absolute, however, nor self-applying. The Court must analyze them in the specific context of the Airport. But for present purposes, the Court notes that the Plaintiffs’ alleged harm of being unable to protest at a specific location on short notice states a cognizable First Amendment claim. In addition, by its very nature, this is the sort of claim that is “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911). Here, “the challenged action”—enforcement of the seven-day permit requirement during an event of rapidly developing significance —“was in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Further, “there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. More specifically, the Court credits Plaintiffs’ testimony that they intend to return to the Airport for future protests, and, given continuing comments by the Trump Administration that new immigration and travel- related executive orders are forthcoming, the Court agrees with Plaintiffs that it is reasonably likely a similar situation will recur —i.e., government action rapidly creating consequences relevant specifically to the Airport.

Thus, although the prospect of being unable to demonstrate at the Airport on short notice is not, literally speaking, an “irreparable harm” (because the need for such demonstration may never arise again), it is nonetheless a sufficient harm for purposes of standing and seeking a preliminary injunction.

The Court now turns to the heart of this case—whether Plaintiffs are likely to succeed on the merits of their claims. Following that, the Court will reprise the irreparable harm analysis in the specific context of the likelihood-of-success findings.

B. Likelihood of Success on the Merits

Evaluating likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that Regulation 50, or any portion of it, violates their First Amendment rights. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling ?state interest? ?

4. If the location is a nonpublic forum, is the government’s speech restriction ? ?reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985).

The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Expressive Conduct?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest that the sorts of activities Plaintiffs attempted to engage in at the Airport (including holding up signs) are expressive endeavors protected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on this element of the Cornelius analysis.

2. Is the Jeppesen Terminal a Public Forum (Traditional or Designated)?

The Court must next decide whether the Jeppesen Terminal is a public forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum[,] speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

a. Is the Jeppesen Terminal a Traditional Public Forum??

Plaintiffs claim that “[t]he Supreme Court has not definitively decided whether airport terminals . . . are public forums.” (ECF No. 2 at 7.) This is either an intentional misstatement or a difficult-to-understand misreading of the most relevant case (which Plaintiffs repeatedly cite), International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (“Lee”).

The plaintiffs in Lee were disseminating religious literature and soliciting funds at the airports controlled by the Port Authority of New York and New Jersey (JFK, LaGuardia, and Newark). Id. at 674–75. By regulation, however, the Port Authority prohibited “continuous or repetitive” person-to-person solicitation and distribution of literature. Id. at 675–76. The Second Circuit held that the airports were not public fora and that the regulation was reasonable as to solicitation but not as to distribution. Id. at 677. The dispute then went to the Supreme Court, which granted certiorari specifically “to resolve whether airport terminals are public fora,” among other questions. Id.

The Court answered the public forum question in the negative. Relying on the historical use of airport terminals generally, the Court found that “the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.” Id. at 680. “Nor can we say,” the Court continued, “that these particular terminals, or airport terminals generally, have been intentionally opened by their operators to such activity; the frequent and continuing litigation evidencing the operators’ objections belies any such claim.” Id. at 680–81. Then, invoking the reasonableness test that applies to government regulation of nonpublic fora, the Court affirmed the Second Circuit’s holding that the solicitation ban was reasonable. Id. at 683–85.

Five justices (Rehnquist, White, O’Connor, Scalia, and Thomas) joined all of the major rulings regarding the solicitation ban, including the nonpublic forum status of airport terminals and the reasonableness of the ban. The outcome regarding the distribution ban, however, commanded no majority opinion. Justice O’Connor, applying the reasonableness standard for nonpublic fora, agreed with the Second Circuit that the distribution ban was not reasonable. Id. at 690–93 (opn. of O’Connor, J.). Justice Kennedy, joined in relevant part by Justices Blackmun, Stevens, and Souter, agreed that the Second Circuit’s judgment regarding the distribution ban should be affirmed, but on different grounds, namely, under a strict scrutiny test (because these justices believed that the airport terminals should be deemed a public forum). Id. at 708–10 (opn. of Kennedy, J.). The result was that the Second Circuit’s invalidation of the distribution ban was affirmed without any opinion commanding a majority view.

Regardless of the outcome with respect to the distribution ban, it is beyond debate that five Supreme Court justices in Lee agreed that airport terminals are not public fora. Id. at 680–81. The Tenth Circuit has acknowledged this holding. Mocek v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015) (“As an initial matter, an airport is a nonpublic forum, where restrictions on expressive activity need only ‘satisfy a requirement of reasonableness.’” (quoting Lee, 505 U.S. at 683)). Notably, Plaintiffs have cited no case in which any court anywhere has deemed an airport to be a public forum.

b. Is the Jeppesen Terminal a Designated Public Forum??

Even though the Jeppesen Terminal is not a traditional public forum, Denver could still designate it as a public forum if Denver “intentionally [opens the Jeppesen Terminal] for public discourse.” Cornelius, 473 U.S. at 802. Denver denies that it has done so, and Plaintiffs’ arguments to the contrary lack merit.

i. Terminal Visitors’ Incidental Expressive Activities

Plaintiffs argue that visitors to the Jeppesen Terminal “engage in First Amendment activity; they wear buttons, shirts, and hats that convey distinct messages to other visitors. They engage in one-on-one conversations.” (ECF No. 21 at 3.) Thus, Plaintiffs say, Denver has designated a public forum within the Jeppesen Terminal.

The Tenth Circuit has already foreclosed this argument. Addressing the public forum status of the Denver Performing Arts Complex, the Court stated the following: “Even if Denver allowed patrons to wear political buttons or shirts with slogans, this would not be sufficient to establish a designated public forum. The First Amendment does not require the government to impose a ‘zone of silence’ on its property to maintain its character as a nonpublic forum.” Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1288 (10th Cir. 1999).

Indeed, even if it wanted to, Denver almost certainly could not impose such a “zone of silence,” as illustrated by Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987). There, the Los Angeles airport authority adopted a resolution announcing that “the Central Terminal Area at Los Angeles International Airport [LAX] is not open for First Amendment activities.” Id. at 570–71 (internal quotation marks omitted). The Supreme Court found that this provision did not “merely reach the activity of [the religious proselytizers who challenged it],” but also prohibited

even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some “First Amendment activit[y].” We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.

Id. at 574–75. Thus, the evidence at the Preliminary Injunction Hearing established beyond any possible dispute that Denver has shown no intent to designate the Airport as a public forum by allowing speech at that location which it may not disallow in the first instance.

ii. The Effect of Regulation 50 Itself?

Plaintiffs further argue, “Regulation 50 states that free speech activity is proper in the Jeppesen Terminal (pursuant to a restriction). Denver has [thus] designated the Jeppesen Terminal a public forum for leafleting, conducting surveys, displaying signs, gathering signatures, soliciting funds, and other speech related activity for religious, charitable, or political purposes.” (ECF No. 21 at 3–4.) Although clever, this argument cannot be correct. 2

First, the Airport knows from the Supreme Court’s Jews for Jesus decision, just discussed, that it cannot prohibit all behavior that can be characterized as First Amendment-protected expressive activity.

Second, the Airport also knows from the Lee decision that it likely cannot completely ban some forms of intentional First Amendment communication (such as leafleting) given that the Jeppesen T erminal, like the Port Authority terminals at issue in Lee, is a large multipurpose facility that can reasonably accommodate some amount of intentional First Amendment activity. So, again, the Airport’s choice to regulate what it could not prohibit in the first place is not evidence of intent to designate a public forum. See Stanton v. Fort Wayne-Allen Cnty. Airport Auth., 834 F. Supp. 2d 865, 872 (N.D. Ind. 2011) (“[t]he designation of certain free speech zones, along with the permit requirement and limitation of expression to certain times, manners, and places as set forth in the permit, are marks of the Airport Authority’s attempt to restrict public discourse, and are inconsistent with an intent to designate a public forum” (emphasis in original)).

Third, Plaintiffs’ position, if accepted, would likely turn out to chill expressive speech in the long run. If a government will be deemed to have designated a public forum every time it accommodates citizens’ natural desire to engage in expressive activity in a nonpublic forum, governments will likely cut back on such accommodations as far as they are constitutionally allowed. Cf. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (government may un-designate a designated public forum).

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2 Plaintiffs have unsurprisingly cited no decision from any court adopting their reasoning.
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iii. “Welcome Home” Messages?

Plaintiffs finally argue that “[s]ome individuals (who, importantly, are not airlines passengers) hold signs welcoming home loved ones or those returning from overseas deployment.” (ECF No. 21 at 3.) The Court will address signs welcoming home veterans and active-duty military members in Part IV.B.3.f, below, and for the reasons stated there finds that this practice, to the extent it exists, does not show intent to designate a public forum. As for welcoming home loved ones, the Court sees no greater religious, charitable, political, or labor-related significance in a typical welcome home sign than standing in the meeter-and-greeter area with a pleasant smile.

In any event, to the extent a welcome home sign has greater significance, “[t]he government does not create a public forum by inaction.” Cornelius, 473 U.S. at 802. Thus, simple failure to enforce Regulation 50 against such signholders is not itself sufficient to infer that the Airport intended to designate a public forum. And finally, even if the Court were to find such an intent, the Court would still be required to consider whether the Airport only intended to designate a public forum specifically for, e.g., those wishing to convey welcome home messages: “A public forum may be created for a limited purpose such as use by certain groups, or for the discussion of certain subjects.” Perry, 460 U.S. at 45 n.7 (1983) (citations omitted). Plaintiffs have nowhere addressed this.

For all these reasons, Plaintiffs have failed to demonstrate that the Jeppesen Terminal is a designated public forum. 3

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3 Plaintiffs also attack Regulation 50 as a “prior restraint.” (ECF No. 2 at 6–7.) “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984)) (emphasis in original). Whether or not that definition could fit Regulation 50, it adds nothing to this case because the Supreme Court’s forum analysis provides the governing principles.
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3. Given that the Jeppesen Terminal Is Not a Public Forum, Is Regulation 50 Reasonable in Light of the Purposes Served by the Airport, and Is It Viewpoint-Neutral?

a. Reasonableness of the Need for a Permit Submitted in Advance, Generally

Reasonableness is a fact-intensive inquiry into the “particular nature of the public expression” at issue and “the extent to which it interferes with the designated purposes” of the nonpublic forum. Hawkins, 170 F.3d at 1290. Justice O’Connor’s concurring opinion in Lee is significant here, both because of its reasoning and because it has reached the somewhat paradoxical status of a “controlling concurrence.” See id. at 1289 (“In actuality, [Justice O’Connor’s reasonableness analysis in Lee] constitutes only Justice O’Connor’s view, who provided the swing vote in the highly-fractured Lee decision, but as the narrowest majority holding, we are bound by it.”).

In Lee, Justice O’Connor noted the Port Authority’s airports were not single-purpose facilities (unlike many other locations where the Supreme Court had previously examined speech restrictions). 505 U.S. at 688. Rather, the airports were “huge complex[es] open to travelers and nontravelers alike,” id. at 688, and had essentially become “shopping mall[s] as well as . . . airport[s],” id. at 689. The question, then, was whether Port Authority’s restrictions were “reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id.

Justice O’Connor’s description of the Port Authority Airports aptly describes the Jeppesen Terminal, to an extent. The Great Hall is lined with restaurants and retail establishments, and in that sense is reminiscent of a shopping mall. On the other hand, most of the floor space on level 6 is simply the floor space needed to get from location to location (the equivalent of wide hallways), and most of the floor space on level 5 is dedicated to security screening. The only large area that is usually free of significant obstructions is the central meeter-and-greeter area—and even that area has at times been taken up by art installations or other features. 4

Moreover, despite certain characteristics of the Airport that may resemble a shopping mall, the Airport’s undisputed primary purpose is to facilitate safe and efficient air travel. The need for safety hopefully needs no discussion —for decades, airports and airplanes have been the specific target of terrorists. As for efficiency, the significance of the Great Hall within the Jeppesen Terminal is particularly evident given that it is the node through which every arriving and departing passenger must pass. As noted, the Airport served 58.3 million passengers last year. Even assuming that just 20 million (about a third) were arrivals and departures (the remainder being those who connect through without reaching the Jeppesen Terminal), this still comes to more than 55,000 passengers moving through the Great Hall per day, or about 2,300 per hour. If the Airport could somehow maintain precisely that average over all days and hours of its operation —which of course never happens— it would still be the equivalent of perpetually filling and emptying a large concert hall every hour.

In this light, the Airport’s general purposes for requiring demonstrators to apply for a permit in advance are difficult to question. As stated by the various Airport administrators who testified at the Preliminary Injunction Hearing (Ken Greene, chief operations officer; Patrick Heck, chief commercial officer; and Dave Dalton, assistant director for terminal operations), it is important for the Airport to have advance notice regarding the presence of individuals coming for reasons other than normal airport- related activities, and particularly those who come to the airport intending to attract the attention of passengers and others. The Airport needs an opportunity to determine the appropriate location for a group of the requested size in light of the day(s) and time(s) requested. The permitting requirement also gives the Airport the opportunity to point out Regulation 50’s code of conduct (Regulation 50.08), so that demonstrators know what activities are and are not permissible.

In addition, the Airport fairly desires an opportunity to understand the nature of the expressive activity, which can inform whether additional security is needed. As Lopez’s testimony illustrates, it is not a simple matter to bring additional police officers to the Airport on a moment’s notice. Lopez further pointed out the advantage of understanding the subject matter of the dispute so that he can anticipate whether counter-protesters might arrive and potentially create at least a difficult, if not dangerous, situation.

Importantly, Denver does not need to prove that any particular past event has raised serious congestion or safety concerns: “Although Denver admits that plaintiffs did not cause any congestion problems or major disruption on the particular occasion that they demonstrated . . . , that is not dispositive. ‘[T]he Government need not wait until havoc is wreaked to restrict access to a nonpublic forum.’” Hawkins, 170 F.3d at 1290 (quoting Cornelius, 473 U.S. at 810). Thus, the Airport may reasonably require a permit applied for in advance. The Court does not understand Plaintiffs to be arguing to the contrary, i.e., that the Airport is never justified in requiring an advance permit under any circumstances.

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4 Plaintiffs’ Exhibit 15, for example, is a photograph of the meeter-and-greeter area in 2008, and shows that a fountain occupied a significant portion of floor space at the time.
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?b. Reasonableness of the Seven-Day Requirement, Specifically

Plaintiffs do attack Regulation 50.03’s requirement that permit applications be submitted seven days in advance of the desired activity, apparently arguing that this is unconstitutionally unreasonable in all circumstances. Given both Plaintiffs’ testimony at the Preliminary Injunction Hearing, it is not clear that they would be satisfied by a shorter advance-notice period, nor that it would redress their claimed injury —the inability to protest essentially at a moment’s notice on a topical event. But, to the extent Plaintiffs are challenging the seven-day requirement through the overbreadth doctrine (see Part IV.B.4, below), the Court finds that they have not met their higher burden (or even the normal preliminary injunction burden) to show that they are likely to succeed on proving the seven-day requirement unreasonable in all circumstances.

The Airport’s witnesses were not aware of any other airport with a seven-day requirement. The Indiana airport at issue in the Stanton case —which Defendants have relied upon heavily— had a two-day notice requirement, and also a provision by which the airport could accept an application on even shorter notice. 834 F. Supp. 2d at 870. On the other hand, that Airport handled about 40,000 departing and arriving passengers per month, id. at 868, whereas the Denver Airport handles far more than that per day.

The Court’s own research has revealed that airports ahead of the Denver Airport in 2016 passenger statistics have varied requirements:

• O’Hare International Airport (Chicago) — six business days, see Chicago Department of Aviation Amended Rules and Regulations Governing First Amendment Activities at the City of Chicago Airports § 3(A) (Sept. 18, 2015), available at http://www.flychicago.com/SiteCollectionDocuments/ OHare/AboutUs/cdaamendedRulesandRegs.pdf (last accessed Feb. 16, 2017);

• Dallas-Fort Worth International Airport — three business days, see Code of Rules and Regulations of the Dallas-Fort Worth International Airport Board, ch. 3, § 4, art. VI(A) (2006), available at https://www.dfwairport.com/cs/groups/public/documents/webasset/p1_008800.pdf (last accessed Feb. 16, 2017); ?

• John F. Kennedy International Airport (New York City) — twenty-four hours, see Port Authority of New York and New Jersey Airport Rules and Regulations § XV(B)(2)(a) (Aug. 4, 2009), available at http://www.panynj.gov/airports/pdf/Rules_Regs_Revision_8_04_09.pdf (last accessed Feb. 16, 2017). ??

Obviously there is no clear trend. Depending on how these airports define “business day,” some of these time periods may actually be longer than the Denver Airport’s seven-day requirement. ?

In any event, Plaintiffs have never explained how the Airport, in its particular circumstances, cannot reasonably request seven days’ advance notice as a general rule. Indeed, Plaintiffs could not cite to this Court any case holding that any advance notice requirement applicable to a nonpublic forum was unconstitutional in all circumstances. Accordingly, Plaintiffs have not made a strong showing of likelihood of success on this particular theory of relief.

c. Reasonableness of the Regulation 50.03’s Lack of a Formal Process for Handling Permit Application More Quickly in Exigent Circumstances

Plaintiffs would prefer that they be allowed to demonstrate at the Airport without any advance notice in “exigent circumstances.” Given the serious and substantial purposes served by an advance notice requirement, the Court cannot say that Plaintiffs are likely to succeed on this score. Plaintiffs have given the Court no reason to hold that the Airport has a constitutional duty, even in exigent circumstances, to accommodate demonstrators as they show up, without any advance warning whatsoever.

Nonetheless, the Airport’s complete lack of any formal mechanism for at least expediting the permit application process in unusual circumstances raises a substantial and serious question for this Court. As noted in Part IV.A, above, timing and location are cardinal First Amendment considerations, and a number of cases regarding public fora (streets and parks) have held or strongly suggested that an advance notice requirement is unconstitutional if it does not account for the possibility of spontaneous or short-notice demonstrations regarding suddenly relevant issues.

Indeed, as the undersigned pointed out to Defendants’ counsel at the Preliminary Injunction Hearing, Denver itself is willing to accept an application for a street parade on twenty-four hours’ notice (as opposed to its standard requirement of thirty days) “if the proposed parade is for the purpose of spontaneous communication of topical ideas that could not have been foreseen in advance of [the] required application period or when circumstances beyond the control of the applicant prevented timely filing of the application.” Denver Mun. Code § 54-361(d). But again, this governs a public forum (city streets), where time, place, and manner restrictions such as this must satisfy a narrow tailoring analysis and leave open ample alternative channels for communication. See Perry, 460 U.S. at 45. As the above discussion makes clear, under controlling authority the Airport need not satisfy the same legal standards.

The parties have not cited, nor has the Court located, any case specifically discussing the need for a nonpublic forum to accommodate short-notice demonstrations. But the Court likewise has not found any case expressly precluding that consideration when evaluating reasonableness in the context of a nonpublic forum. It is perhaps unsurprising that the specific question has never come up in a nonpublic forum until now. The Court believes it to be an accurate observation that this country has never before experienced a situation in which (a) the motivation to protest developed so rapidly and (b) the most obviously relevant protest locations was a place the Supreme Court had already declared to be a nonpublic forum—the airport terminal.

When evaluating the reasonableness of a First Amendment restriction in a nonpublic forum, the Court concludes that it may appropriately consider the ability to shorten an advance notice requirement in a place like the Airport, given how unique airports are within the category of nonpublic fora. As Justice O’Connor noted in Lee, most of the Supreme Court’s major nonpublic forum cases aside from airport cases have involved

discrete, single-purpose facilities. See, e.g., [United States v.] Kokinda, [497 U.S. 720 (1990)] (dedicated sidewalk between parking lot and post office); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985) (literature for charity drive); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (utility poles); Perry, supra (interschool mail system); Postal Service v. Council of Greenburgh Civic Assns., [453 U.S. 114 (1981)] (household mail boxes); Adderley v. Florida, 385 U.S. 39 (1966) (curtilage of jailhouse).

505 U.S. at 688 (parallel citations omitted). As Justice O’Connor observed, however, many airports have become large, multipurpose facilities, see id. at 688–89, and that describes the Denver Airport well. To be sure, the reason for expanding beyond the bare minimum of infrastructure needed to handle travelers and airplanes is to promote air travel—to make the airport a more convenient and welcoming location specifically (although not exclusively) for travelers—but the reasonableness of First Amendment restrictions must nonetheless be judged according to the “multipurpose environment that [airport authorities] ha[ve] deliberately created.” Id. at 689.

Moreover, modern airports are almost always owned and operated by a political body, as well as secured by government employees. Thus, short-notice demonstrations reasonably relevant to an airport are also reasonably likely to be demonstrations about political or otherwise governmental topics, “an area in which the importance of First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (internal quotation marks omitted).

Given all this, and in light of the First Amendment interests in location and timing that this very case has made salient, the Court finds it unreasonable for the Airport to have no formal process by which demonstrators can obtain an expedited permit when -to borrow from the Denver parade ordinance— they seek to communicate topical ideas reasonably relevant to the Airport, the immediate importance of which could not have been foreseen in advance of the usual seven-day period, or when circumstances beyond the control of the applicant prevented timely filing of the application. The Court further finds in the particular circumstances of the Airport that reasonableness requires a process by which an applicant who faces such circumstances can request a permit on twenty-four hours’ notice. If this is all the notice Denver needs to prepare for a street parade, the Court can see no reason why more notice is needed (in exigent circumstances) for a substantially more confined environment like the Airport. 5

Accordingly, the Court finds that Plaintiffs are strongly likely to succeed in their challenge to Regulation 50.03 to this limited extent.

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5 At the Preliminary Injunction Hearing, Defendants’ counsel argued that preparing for a street parade is actually easier than preparing for demonstrations at the airport. The Court cannot fathom how this could possibly be the case, at least when comparing a typical street parade request to the typical Airport demonstration request. Indeed, the normal street parade request window is thirty days, suggesting just the opposite. Denver Mun. Code § 54-361(d). The challenges may be different, but the Court cannot accept—on this record, at least—that Airport demonstrations on average require more preparation time than do public parades or marches.
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d. Reasonableness of the Airport’s Power to Control the Location of Permitted Expressive Activity

At the Preliminary Injunction Hearing, it became clear that Plaintiffs not only wish for a more expansive right to protest in the Jeppesen T erminal, but they also argue for the right to select precisely where in the Terminal they should be allowed to stand. The Court recognizes that, from Plaintiffs’ perspective, their message is diluted if they cannot demonstrate in the international arrivals area, and this is a legitimate concern for all the reasons discussed previously about the power of location when conveying a message. The Court must also account, however, for Airport administrators’ superior knowledge about airport operations, foot traffic patterns, concerns particular to the specific day of the protest, and so forth.

?Regulation 50.04-1 requires permit applicants to specify “each location at which the [expressive] activity is proposed to be conducted,” but nowhere in Regulation 50 is there any limitation on the Airport’s discretion whether to approve the location request. Rather, the only provision addressing this topic is Regulation 50.04-6, which applies to a demonstration already underway: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.”

There is no evidence that Airport administrators are using their discretion when approving a demonstration’s location to suppress or dilute a particular message, but there is also no logical reason to leave Airport administrators’ discretion essentially unfettered at the permitting stage while restricting it once the demonstration is underway. The Court finds Plaintiffs are likely to succeed at least in proving that Regulation 50.04-1 is unreasonable to the extent the Airport’s discretion is not restrained to the same degree as in Regulation 50.04-6. Defendants will therefore be enjoined to follow the same restraints in both settings.

e. Reasonableness of Regulation 50.09’s Prohibition of Signage Within the Jeppesen Terminal, and Regulation 50.08-12’s Limitation of All Signs to One Square Foot

Regulation 50.09 establishes that “picketing” (defined to include “displaying one or more signs, posters or similar devices,” Regulation 50.02-8) is totally prohibited in the Jeppesen Terminal unless as part of a labor protest. And, under Regulation 50.08-12, any permissible sign may be no larger than “one foot by one foot in size.”

?Any argument that the picketing ban is reasonable in the context of the Airport is foreclosed by Justice O’Connor’s analysis of the leafleting band at issue in Lee. See 505 U.S. at 690–93. Leafleting usually involves an individual moving around, at least within a small area, and actively offering literature to passersby. Signholding is usually less obtrusive, given that the signholder often stays within an even smaller area and conveys his or her message passively to those who walk by and notice the sign. The Court simply cannot discern what legitimate or reasonable Airport purpose is served by a complete ban on “picketing” or signholding among permitted demonstrators in the Jeppesen Terminal.

The Court also finds the one-foot-by-one-foot signage restriction unreasonable. The Airport has a legitimate interest in regulating the size of signs, as well as other aspects of their display (such as whether they will be held in the air, as in traditional picketing), but a one-foot-by-one-foot restriction is barely distinguishable, both legally and as a factual matter, from a complete ban. The point of a sign is to make a message readable from a distance. Few messages of substance are readable from any kind of distance if they must be condensed into one foot square. Reasonableness instead requires the Airport to consider the size of the signs that a permit applicant wishes to display as compared to the needs and limitations of the location where the applicant will demonstrate. Any restriction by the Airport which limits the size of a permit applicant’s signage beyond that which may be reasonably required to prevent the restriction or impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal will be preliminarily enjoined.

f. Viewpoint Neutrality

?A nonpublic forum is not required to be content-neutral, but it is required to be viewpoint-neutral with respect to the First Amendment activity it permits. Hawkins, 170 F.3d at 1288. Regulation 50, on its face, is viewpoint neutral, and Plaintiffs do not argue otherwise. Rather, they say that “Regulation 50 is being enforced as a clearly view-point-based restriction.” (ECF No. 2 at 14 (emphasis added).) This appears to be an as-applied challenge:

Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest.

(Id.) Denver responds:

The permit requirement furthers the nonpublic forum purpose by mitigating disruption at the airport by individuals who choose to be at the airport for non-travel related activities. In Stanton, the [Northern District of Indiana] rejected this exact argument challenging a nearly identical permitting rule of the Fort Wayne-Allen County Airport on an as applied basis by distinguishing between incidental expressive activities by members of the traveling public versus those arriving at the airport solely for purposes of engaging in expressive speech. Any messages a traveler or individual picking up a family member conveys by wearing T-shirts or hats are “incidental to the use of the Airport’s facilities” by persons whose “primary purpose for being present at the Airport is a purpose other than expressing free speech rights,” which is different in kind than individuals arriving at an airport whose primary purpose is expressive speech. Id. at 880–882.

(ECF No. 20 at 11 (emphasis added).)?

This argument obviously relies on a particular interpretation of Regulation 50 (given that the Regulation itself makes no explicit distinction between those who arrive at the airport for travel-related purposes and those who do not). Nonetheless, this is how Airport administrators interpret Regulation 50, as they made clear at the Preliminary Injunction Hearing. They also made clear that they have never sought to enforce Regulation 50 against someone wearing a political shirt, for example, while on airport-related business. Plaintiffs’ own arguments support the sincerity of the Airport administrators’ testimony. By Plaintiffs’ own admission, they are unaware of anyone going about his or her typical airport-related business who has been arrested or even threatened with arrest for wearing a political shirt, discussing politics, etc.

At the Preliminary Injunction Hearing, Plaintiffs attempted to present an as- applied viewpoint discrimination case by showing that the Airport regularly allows individuals to hold rallies, display signs, and so forth, for returning servicemembers and veterans, yet without requiring those individuals to obtain a permit under Regulation 50. The Court agrees that pro-military and pro-veteran messages are political statements, at least to the extent being conveyed by someone not at the Airport to welcome home a relative or loved one (and perhaps even by those persons as well). Thus, it would seem that pro-military messages would fall under Regulation 50. However, Plaintiffs have failed at this stage to show that the Airport’s alleged treatment of pro-military and pro-veteran messages amounts to viewpoint discrimination.

At the outset, Plaintiffs fail to note the subjective element of their claim: “viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.” Pahls, 718 F.3d at 1230. In that light, it is tenuous to suggest that allowing (allegedly) unpermitted pro-military or pro-veteran expression at various times in the past but not allowing these recent unpermitted protests against the Executive Order is evidence of viewpoint discrimination. The question of whether our nation should honor servicemembers and the question of how our nation should treat foreign nationals affected by the Executive Order are not really in the same universe of discourse. To bridge the gap, it takes a number of assumptions about where pro-military attitudes tend to fall in the American political spectrum, and what people with those attitudes might also think about the Executive Order. This would be a fairly tall order of proof even outside the preliminary injunction context.

Moreover, Plaintiffs’ evidence of unpermitted pro-military expression is fairly weak. Plaintiffs’ main example is the activities of the Rocky Mountain Honor Flight, an organization that assists World War II veterans to travel to Washington, D.C., and visit the World War II Memorial, and then welcomes them home with a large and boisterous rally held in the meeter-and-greeter portion of the Great Hall. A former servicemember who helped to organize one of these rallies testified that she inquired of a more-senior organizer whether the Airport required any special procedures, and the answer she received was “no.” However, Airport administrators presented unrebutted testimony that Rocky Mountain Honor Flight rallies are planned far in advance and sponsored by the Airport itself, in connection with TSA and certain airlines. The Airport does not need a Regulation 50 permit for its own expressive activities, and a government entity’s expression about a topic is not a matter of First Amendment concern. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”).

Apart from the Rocky Mountain Honor Flight, Plaintiffs’ evidence comprises photos they gleaned from a Getty Images database showing individuals over the last decade or so being greeted at the Airport by persons holding signs. Some of these signs appear to be simple “welcome home” signs directed at specific returning family members. In the obviously servicemember-related photos, American flags are common. The Court finds that these photos, presented out of context, are not sufficient evidence to make a strong showing of likelihood of success regarding viewpoint discrimination, particularly the subjective intent requirement. Thus, the Court finds no reason for an injunction based on alleged viewpoint-discriminatory conduct. 6

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6 Even if Plaintiffs’ evidence were enough, the Court would find at this stage of this litigation that the only injunctive relief appropriate in light of the balance-of-harms and public interest considerations, below, would be an injunction to enforce Regulation 50 evenhandedly. Such an outcome would not advance Plaintiffs’ interests here.
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4. Is Regulation 50 Overbroad or Vague?

Plaintiffs bring both overbreadth and vagueness challenges to Regulation 50, which, in this case, are really two sides of the same coin. If a speech regulation’s sweep is unclear and may potentially apply to protected conduct, a court may invalidate the regulation as vague; whereas if the regulation actually applies to unprotected as well as protected speech, an individual who violates the regulation through unprotected speech may nonetheless challenge the entire statute as overbroad. See Grayned v. City of Rockford, 408 U.S. 104, 108–09, 114–15 (1972); 1 Smolla & Nimmer on Freedom of Speech ch. 6 (Oct. 2016 update). Here, Plaintiffs argue either that Regulation 50 is overbroad because it forbids (without a permit) protected conduct such as wearing a political hat while walking to one’s flight (ECF No. 2 at 16–18); or it is vague because it is unclear to what it applies precisely, given that Plaintiffs have seen Regulation 50 enforced against themselves but not against those who wear political hats or buttons, who are welcoming home military veterans, etc., all of whom are “seemingly in violation” of the Regulation (id. at 18–20).

The first task, then, is to determine what Regulation 50 actually encompasses. Again, the Regulation states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.”

The portion about leafleting, conducting surveys, displaying signs, gathering signatures, or soliciting funds is not vague. It does not fail to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned, 408 U.S. at 108. Nor is it overbroad given that it is not a complete prohibition of leafleting (as in Lee), but simply a prohibition without a permit.

The arguably difficult portion of Regulation 50 is the “or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes” clause. It is grammatically possible to interpret this passage as extending to any religious, charitable, or political “speech related activity” by anyone at the Airport, including travelers wearing political buttons or sharing their religious beliefs with others.

Denver argues that no person of ordinary intelligence would have such a worry: “a person of ordinary intelligence cannot reasonably claim that they are unable to discern the difference between a traveler walking through the airport with a ‘make America great again’ baseball cap or travelers discussing politics as they walk to their intended destination and a gathering of people who have no purpose for being at the airport other than to march or station themselves in order to communicate their position on a political issue.” (ECF No. 20 at 14.) This argument is slightly inapposite. The question is not whether someone can distinguish between a passenger’s pro-Trump hat and a gathering of anti-Trump protesters. The question is whether Regulation 50 contains such a distinction, and particularly a distinction between the incidental activities of those who come to the airport for airport-related purposes and the intentional activities of those who come to the airport to demonstrate.

However, to the extent Denver means to say that Regulation 50 would not be interpreted by a person of ordinary intelligence to encompass, e.g., a traveler choosing to wear a “Make America Great Again” hat, the Court agrees. Regulation 50 is not, as Plaintiffs suggest, just one paragraph from Regulation 50.03. Regulation 50 comprises sixteen major subdivisions, many of which are themselves subdivided. A person of ordinary intelligence who reads Regulation 50 —all of it— cannot avoid the overwhelming impression that its purpose is to regulate the expressive conduct of those who come to the Airport specifically to engage in expressive conduct. Thus, Regulation 50 is not vague.

As for overbreadth, “[t]he first step in [the] analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). For the reasons already stated, the Court finds that the only reasonable construction is one that does not extend to an airline passenger wearing a political T-shirt, or anything of that character. Cf. Jews for Jesus, 482 U.S. at 575. This is, moreover, the Airport’s own interpretation, the sincerity of which is borne out by Plaintiffs’ own experience. Thus, Regulation 50 is not overbroad. 7

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7 Even if Regulation 50 were vague or overbroad, the Court would nonetheless find that an injunction against enforcing Regulation 50 as a whole would be against the public interest. The more appropriate remedy would be an injunction to follow precisely the interpretation that the Airport currently follows, but that would be of no benefit to Plaintiffs.
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?C. Irreparable Harm

Having found that Plaintiffs are strongly likely to succeed in invalidating a narrow subset of Regulation 50, the Court returns to irreparable harm. Given that Plaintiffs First Amendment rights are at stake in those portions of Regulation 50 that the Court finds to be unreasonable, irreparable harm almost inevitably follows: “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted).

?D. Balance of Harms

The injury to a plaintiff deprived of his or her legitimate First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). Thus, the Court finds that the harm to Plaintiffs from the Airport’s continued enforcement of the unreasonable portions of Regulation 50 would be greater than the harm to the Airport in refraining from such enforcement, particularly given that the unreasonable portions are quite limited and most of Regulation 50 will remain unchanged.

?E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. Moreover, the Court is not striking down Regulation 50 or even altering it in any significant respect. Thus, the public’s interest in safe and efficient Airport operations remains unaffected.?

F. Bond

A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held, however, that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted); see also 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2016 update) (citing public rights cases where the bond was excused or significantly reduced). Denver has not argued that Plaintiffs should be required to post a bond, and the Court finds that waiver of the bond is appropriate in any event.

V. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED to the ?limited extent stated in this order and otherwise DENIED; ?

2. The City and County of Denver (including its respective officers, agents, ?servants, employees, attorneys, and other persons who are in active concert or participation with any of them, and further including without limitation Defendants Lopez and Quiñones) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows:

a. Defendants must timely process a permit application under Denver Airport Regulation 50.04-1 that is received less than 7 days but at least 24 hours prior to the commencement of the activity for which the permit is sought, provided that the applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen 7 days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the applicant prevented timely filing of the application; however, circumstances beyond Defendants’ control may excuse strict compliance with this requirement to the extent those circumstances demonstrably interfere with the expedited permitting process; ?

b. So long as a permit applicant seeks to demonstrate in a location where the unticketed public is normally allowed to be, Defendants must make all reasonable efforts to accommodate the applicant’s preferred location, whether inside or outside of the Jeppesen Terminal;

c. Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Regulation 50.02-8) within the Jeppesen Terminal; and

d. Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot.

3. This Preliminary Injunction is effective immediately upon issuance of this Order, and will remain in force for the duration of this action unless otherwise modified by Order of this Court.

Dated this 22nd day of February, 2017, at 8:05 a.m. Mountain Standard Time. BY THE COURT:

__________________________
William J. Martínez?
United States District Judge

Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction


Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION,

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”).

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1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
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Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes, but is not limited to, the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; ?

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would not “arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature.” The Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
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Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . can be restricted as long as the restrictions are ‘reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that ‘resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because the [Plaza Order] would satisfy even the strictest test.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . enforce regulations of the time, place, and manner of expression which [1] are content- neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government Services Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

Occupy v. Martinez (Plaza Protest Ban) 2015 Order Granting Prelim Injunction


While we await a judge’s response to the complaint and motion for a preliminary injunction against DIA’s free speech permit, I was drawn to reminisce about an earlier federal injunction GRANTED against Denver’s 2nd Judicial District. It was/is (!) also a preliminary injunction curbing police intimidation. This one prevents arrests of Jury Nullification pamphleteers at the Lindsey Flanigan Courthouse in Denver. More broadly, it halts the enforcement of the despotic “Chief Justice Order 1” which attempted to curb free speech in Tully Plaza, between the courthouse and the jail, site of innumerable protest rallies since the facility was erected in 2010. After a protracted legal battle, the case will finally come to trial in April 2017. This case also started with police overreach, then a complaint, a motion, and a hearing. In August 2015, US District Judge William Martinez issued the below court order granting the preliminary injunction.

Document 28 Filed 08/25/15 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 15-cv-1775-WJM-MJW

ERIC VERLO,?
JANET MATZEN, and?
FULLY INFORMED JURY ASSOCIATION,

Plaintiffs, v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality,?ROBERT C. WHITE, in his official capacity as chief of police for Denver, and CHIEF JUDGE MICHAEL MARTINEZ, in his official capacity as chief judge of the Second Judicial District,

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

Plaintiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (“FIJA”) (collectively, “Plaintiffs”) bring this lawsuit to establish that they have a First Amendment right to distribute and discuss literature regarding jury nullification in the plaza outside of Denver’s Lindsey-Flanigan Courthouse (“Courthouse Plaza” or “Plaza”). (ECF Nos. 1, 13-1.) The Lindsey-Flanigan Courthouse is where most criminal proceedings take place for Colorado’s Second Judicial District (which is coterminous with the City and County of Denver).

Plaintiffs have sued the City and County of Denver itself and its police chief, Robert C. White, in his official capacity (jointly, “Denver”). Plaintiffs have also sued the Hon. Michael A. Martinez 1 in his official capacity as Chief Judge of the Second Judicial District. Out of recognition that Plaintiffs’ lawsuit does not target Chief Judge Martinez himself but rather a policy promulgated by the Second Judicial District through Chief Judge Martinez, the Court will refer below to Chief Judge Martinez as “the Second Judicial District.”

On the same day Plaintiffs filed their complaint, they also moved for a preliminary injunction to restrain Defendants from taking any action to stop them from distributing certain literature regarding, or advocating for, jury nullification on the Courthouse Plaza (“Motion”). (ECF No. 2.) The Second Judicial District, represented by the Colorado Attorney General’s office, filed a response defending its current policy of limiting expressive activities to certain areas away from the main walkways leading to the Courthouse doors. (ECF No. 24.) Denver, represented by the Denver City Attorney’s office, did not file a response, but instead filed a joint stipulation with Plaintiffs regarding the status of the Plaza. (ECF No. 23.) As discussed further below, Denver (a) has no intent to enforce the Second Judicial District’s policy that would otherwise restrict Plaintiffs’ activities, and (b) agrees with Plaintiffs that they have a First Amendment right to distribute and discuss their literature essentially anywhere on the Courthouse Plaza, including in the areas designated as restricted by the Second Judicial District.

This Court held an evidentiary hearing and heard oral argument on August 21, 2015. Having considered all of the filings, evidence, and arguments submitted to date, the Court grants Plaintiffs’ Motion for the reasons explained below.

—————
1 No relation to the undersigned.?
————

I. LEGAL STANDARD

To prevail on a motion for preliminary injunctive relief, Plaintiffs have the burden of establishing that four equitable factors weigh in their favor: (1) they are substantially likely to succeed on the merits; (2) they will suffer irreparable injury if the injunction is denied; (3) their threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

II. BACKGROUND

A. Facts Alleged in the Original Complaint

Plaintiffs’ original complaint recounts the story of two non-parties, Mark Iannicelli and Eric Brandt, who were passing out pamphlets on the Courthouse Plaza on July 27, 2015. (ECF No. 1 ¶ 14.) The pamphlets were titled “Fresh Air for Justice” and “Your Jury Rights: True or False?” (Id. ¶ 15; ECF No. 1-3; ECF No. 1-4.) Both pamphlets contain some history of jury nullification and various general statements about the jury’s role as envisioned by the Framers. (See generally ECF Nos. 1-3, 1-4.) But the pamphlets also contain certain calls to action which could raise concern. “Fresh Air for Justice,” for example, contains the following:

• “Judges say the law is for them to decide. That’s not true. When you are a juror, you have the right to decide both law and fact.” (ECF No. 1-3?at 3.) ?

• “If the law violates any human rights, you must vote no against that law by voting ‘not guilty.’” (Id. (emphasis in original).) ?

“Fresh Air for Justice” also contains the following, which could be interpreted as encouraging prospective jurors to lie during voir dire:

When you are called for jury duty, you will be one of the few people in the courtroom who wants justice rather than to win or to score career points. For you to defend against corrupt politicians and their corrupt laws, you must get on the jury. During the jury selection, prosecutors and judges often work together to remove honest, thinking people from juries. ?

When you’re questioned during jury selection, just say you don’t keep track of political issues. Show an impartial attitude. Don’t let the judge and prosecutor stack the jury by removing all the thinking, honest people!

Instructions and oaths are designed to bully jurors and protect political power. Although it all sounds very official, instructions and oaths are not legally binding, or there would be no need for independent thinking jurors like you.?

?(Id. at 4.)

The other pamphlet, “Your Jury Rights: True or False?”, does not contain language quite as direct as the foregoing, but it does declare, “You cannot be forced to obey a ‘juror’s oath.’” (ECF No. 1-4 at 3.) ?

Iannicelli was arrested on the Plaza that day, and Brandt was arrested on a warrant a few days later. (ECF No. 1 ¶ 18.) Both were charged with jury tampering: “A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.” Colo. Rev. Stat. § 18-8-609(1). The affidavit supporting Brandt’s arrest mentions that he and Iannicelli had been on the Courthouse Plaza at a time that jurors “would be expected to be arriving” for the ongoing death penalty prosecution of Dexter Lewis. (ECF No. 1-2 at 4.) 2

Plaintiff Eric Verlo “wishes to pass out the same literature on the Lindsey-Flannigan [sic; ‘Flanigan’] plaza as Eric Brandt and Mark Iannicelli were passing out which caused them to be arrested.” (ECF No. 1 ¶ 9.) Plaintiff Janet Matzen wishes to do the same. (Id. ¶ 10.) Plaintiff FIJA is

an association, based in Montana, who’s [sic] members passionately believe in the concept of jury nullification. FIJA intends to hold an educational campaign in Denver on September 5, 2015 where its members wish to pass out the same brochures on the Lindsey-Flannigan [sic] plaza as Eric Brandt and Mark Iannicelli . . . .

(Id. ¶ 11.) 3 Plaintiffs say that the arrests of Brandt and Iannicelli have caused them to to fear that they too might be arrested and prosecuted. (Id. ¶ 22.)

——————
2 Lewis was charged with murdering five individuals at a Denver bar in 2012. See, e.g., Jordan Steffen & Matthew Nussbaum, “Denver jury hears opening arguments in five Fero’s bar killings,” Denver Post (July 20, 2015), at http://www.denverpost.com/news/ci_28513519/denver-jury-hears-opening-arguments-five-feros-bar (last accessed Aug. 24, 2015).

3 September 5, 2015, is a Saturday —an unlikely day for a jury nullification advocate to reach his or her target audience at a courthouse. When this was pointed out at the preliminary injunction hearing, counsel for Plaintiffs qualified the date with an “on or about.”
——————

?B. Facts Alleged in the Amended Complaint & Supplemental Filings

Two days after filing suit, Plaintiffs filed an amended complaint to insert allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13-1 ¶ 2.) The order, designated “CJO 15-1” and dated August 14, 2015, was titled “Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse.” (ECF No. 24-1.) This order was actually amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and admitted as Exhibit 1 in that hearing. (See ECF No. 25-1.) The Court will refer to the amended order as the “Plaza Order.” In relevant part, it reads as follows:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, as depicted in the highlighted areas of the attached map [reproduced below], without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration;

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds; ?

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

(Id. at 1–2 (formatting in original).) The Court will refer to the Plaza Order’s numbered paragraphs by their number, e.g., “Paragraph 1 of the Plaza Order” (referring to the forms of prohibited expressive activity). In their amended complaint, Plaintiffs allege that the Plaza Order was “apparently” entered in response to Brandt’s and Iannicelli’s actions. (ECF No. 13-1 ¶ 2.)

The “attached map” referenced in the Plaza Order is reproduced on the following page:

(Id. at 3.) This map shows an aerial view of the Courthouse. The top of the map is north. The Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the map. Immediately to the left (west) of the Courthouse is Fox Street. Immediately to the north is Colfax Avenue. Immediately to the right (east) of the Courthouse grounds is Elati Street, which is closed to traffic other than police vehicles as it runs past the Courthouse. Elati bisects a circular area paved in a tan color. Just to the right (east) of Elati, and not depicted in the map, is Denver’s Van Cise-Simonet Detention Center (“Detention Center”), which houses pretrial detainees. Thus, the area between the Courthouse and Detention Center is a fairly spacious place suitable for public gatherings.

Immediately to the east and west of the Courthouse are areas that the Second Judicial District highlighted in yellow to indicate where expressive activity is restricted (“Restricted Area”). This matter principally concerns the arc-shaped portion of the Restricted Area to the east of the Courthouse (“East Restricted Area”). The East Restricted Area comprises the following:

• planter boxes and public art (collectively, “Landscaping”); ?

• sidewalks, including a narrow sidewalk beginning at the north of the map ?(just below the blue bus stop icon) and following the arc of the planter boxes until it reaches a much wider sidewalk that completes the arc, which itself connects with the awning-covered steps leading to the Courthouse front doors depicted in approximately the center of the map (collectively, “Sidewalks”); and ?

• a gravel passive security feature between the narrow sidewalk and the Courthouse itself (“Gravel Area”). ?

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

?Plaintiffs called as a witness Commander Antonio Lopez of the Denver Police Department. Lopez oversees the Denver Police district that encompasses the Courthouse and the Detention Center. Lopez testified that the Courthouse opened in 2010 or 2011. During that time, he has seen “more protests [in the area between the Courthouse and the Detention Center] than [he can] recall. At one point w e were averaging about two or three a week, in that area.” On cross-examination, Lopez clarified that most of those protests were nearer to the Detention Center than the Courthouse. Nonetheless, to Lopez’s knowledge, the Denver Police Department has never restricted or interfered with any peaceful First Amendment activity taking place between the Courthouse and the Detention Center.

2. Mr. Steadman

The Second Judicial District called Steven Steadman, who is the Colorado judicial branch’s security administrator. Steadman was closely involved in the discussions leading up to the Plaza Order. Steadman testified that, during those discussions, he was unaware of Brandt and Iannicelli or the distribution of jury nullification literature, and that the Plaza Order actually arose from very different concerns.

According to Steadman, discussions began with Chief Judge Martinez in early July 2015 because the Dexter Lewis trial was scheduled to overlap with another death penalty trial in Arapahoe County, i.e., the trial of Aurora theater shooter James Holmes. Steadman and Chief Judge Martinez specifically worried about potentially violent protests that might break out if Lewis (who is black) eventually received the death penalty but Holmes (who is white) did not. Proactively seeking to avoid such a problem, Steadman gave Chief Judge Martinez a copy of an order entered by the Hon. Carlos A. Samour, Jr., who presided over the Holmes trial in Arapahoe County. Judge Samour’s order apparently was a model for what the Second Judicial District eventually issued as the Plaza Order.

On cross-examination, Steadman confirmed that the Plaza Order was intended specifically to address the protests that might erupt if Holmes and Lewis were treated differently with respect to the death penalty. Steadman admitted, however, that his office could require several hours’ notice between the announcement that the jury had reached a verdict and the actual reading of the verdict, which would permit a police presence to assemble in anticipation of protests. Steadman also admitted that nothing like the Plaza Order had been in place or enforced prior to August 14, 2015, and that passing out jury nullification literature did not present any security risk beyond what the Second Judicial District has tolerated, without incident, since the Courthouse opened.

III. ANALYSIS

A. Article III Standing

As mentioned previously, Denver has stipulated with Plaintiffs that it will not enforce any prohibition on distributing jury nullification literature on the Courthouse Plaza. Specifically, Denver has stipulated that

Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the Plaza are entitled to do so and that Denver, through its police or sheriff department, will not arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature. The parties stipulate that Plaintiffs’ proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law. . .

***

. . . Denver stipulates that it does not intend to enforce the [Plaza] Order as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.

(ECF No. 23 ¶¶ 2, 4.)

?Given this stipulation, the Second Judicial District argues that Plaintiffs lack Article III standing to bring this lawsuit because no threat of enforcement is imminent. (ECF No. 24 at 6–8.) See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“the irreducible constitutional minimum of standing” includes, among other things, an “actual or imminent” “invasion of a legally protected interest”); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (to obtain prospective relief, a plaintiff must show a “credible threat of future prosecution”). As stated at the preliminary injunction hearing, however, the Court rejects this contention.

The Second Judicial District’s standing argument assumes that the only way an individual could run afoul of the Plaza Order is through Denver’s independent enforcement efforts. But Chief Judge Martinez, and perhaps any other judge in the Second Judicial District, could issue a contempt citation for violating the Plaza Order. Cf. Schmidter v. State, 103 So. 3d 263, 265–69 (Fla. Dist. Ct. App. 2012) (distributor of FIJA literature convicted of contempt for violating an administrative order similar to the Plaza Order). The violator would then be required to appear before the issuing judge, and if he or she fails to appear, an arrest warrant can issue. See Colo. R. Civ. P. 107(c). Denver may then be obligated to arrest the violator —not on the authority of the Plaza Order, but on the authority of the judge’s contempt citation. See id. (requiring the sheriff to carry out the arrest). The Court takes judicial notice of the fact that Colorado state law enforcement officers, not subject to Denver’s stipulation, could also effect the arrest of such a hypothetical violator.

Thus, the Court finds that Article III standing still exists, and the Court will move on to the elements Plaintiffs must establish to secure a preliminary injunction. To repeat, those elements are: (1) likelihood of success on the merits; (2) irreparable injury if the injunction is denied; (3) the threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. Westar Energy, 552 F.3d at 1224.

?B. Likelihood of Success

Evaluating the likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that the First Amendment grants them a right to discuss and distribute pamphlets about jury nullification with individuals entering and leaving the Courthouse. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling state interest? ?

?4. If the location is a nonpublic forum, is the government’s speech restriction reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985). The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Pamphlets and Oral Advocacy of the Message Contained in the Pamphlets?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest on this point. The Second Judicial District has raised no argument that any part of the message conveyed by the pamphlets is unprotected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on the question of whether the First Amendment protects their message.

2. Is the Courthouse Plaza a Public Forum?

The Court must next decide whether the Courthouse Plaza—and the Restricted Area specifically—is a public or nonpublic forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

?The public/nonpublic inquiry presents a unique dilemma in this case. On the one hand, Denver’s stipulation with Plaintiffs includes the following: “The Lindsey-Flanigan plaza . . . which is located between the Van Cise-Simonet Detention Center and the Lindsey-Flanigan courthouse is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest . . . .” (ECF No. 23 ¶ 1 (emphasis added).) On the other hand, the Second Judicial District strong ly disagrees:

. . . Plaintiffs assert that the courthouse plaza is a traditional public forum, and therefore maintain that Chief Judge Martinez’s administrative order must be strictly scrutinized. As a matter of state law, however, Chief Judge Martinez— and not Denver—is responsible for the oversight of the courthouse and the adjoining grounds. Thus, any concession on this point by Denver binds neither the parties nor this Court.

(ECF No. 24 at 8.) Apparently a minor turf war has erupted between Denver and the Second Judicial District over control of the Courthouse grounds.

When asked at the preliminary injunction hearing regarding the “state law” that gives Chief Judge Martinez “responsib[ility] for the oversight of the courthouse and the adjoining grounds,” counsel for the Second Judicial District directed the Court to Colorado Revised Statutes § 13-3-108(1). That subsection reads: “The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.” Neither this language, nor anything else in § 13-3-108, appears to relate to a chief judge’s authority over courthouse policies or courthouse grounds.

?Counsel for the Second Judicial District also pointed this Court to State ex rel. Norton v. Board of County Commissioners of Mesa County, 897 P.2d 788 (Colo. 1995) (“Mesa County”). In Mesa County, the county commissioners defied an order from the Twenty-First Judicial District’s chief judge requiring additional security measures at the county courthouse. See Mesa County, 897 P.2d at 789. The county commissioners further announced their intent to stop providing support of any kind to the Twenty-First Judicial District, arguably in violation of § 13-3-108(1) (quoted above), Colorado Revised Statutes § 13-1-114(2) (requiring county sheriffs to assist the judiciary when the judiciary perceives a “risk of violence in the court”), and Colorado Revised Statutes § 30-11-104(1) (requiring each county to “provide a suitable courthouse”). See id. The county commissioners believed that Colorado’s constitutional Taxpayers’ Bill of Rights allowed the county to disregard the foregoing statutes because they created an impermissible “subsidy” to the court system. Id. at 789–90. The Colorado Supreme Court rejected the county commissioners’ position and held that counties’ statutory duties toward the court system are not “subsidies” under the Taxpayers’ Bill of Rights. Id. at 791.

The Mesa County decision highlights the relationship between counties and the state courts that sit within them. It emphasizes county sheriffs’ duties to assist judges in preventing “violence in the court.” Colo. Rev. Stat. § 13-1-114(2). It does not support the Second Judicial District’s notion that it controls and can speak for the status of the Courthouse grounds.

Finally, counsel for the Second Judicial District cited this Court to In re Court Facilities for Routt County, 107 P.3d 981 (Colo. App. 2004) (“Routt County”). Routt County held that, under certain circumstances, a state judicial district’s chief judge has inherent authority to order the board of county commissioners to design and pay for a new courthouse. Id. at 984. Quoting Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984), Routt County relied on the notion that “courts necessarily possess certain inherent powers, which . . . consist of ‘all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective.’” Routt County, 107 P.3d at 984.

Both Routt County and Peña specifically address the Colorado judiciary’s inherent authority to order another state or municipal entity to spend money on the judiciary’s behalf. That power is not at issue here. Nonetheless, the inherent authority described in Routt County and Peña could conceivably also extend to entering orders such as the Plaza Order. The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza. For at least three reasons, the Court concludes that Plaintiffs are likely to prevail against the Second Judicial District on that question.

First, counsel for the Second Judicial District agrees that Denver owns the Courthouse itself and all of its grounds.

Second, counsel for the Second Judicial District further stated that there was no lease agreement of which he was aware between Denver and the Second Judicial District. Rather, the Second Judicial District occupies the Courthouse “as provided by law.”

?Third, it is undisputed that the Second Judicial District is not the Courthouse’s sole occupant. Denver County Court also sits in the Courthouse. Denver County Court is unique among county courts in Colorado because the Colorado Constitution grants Denver the authority to set the “number, manner of selection, qualifications, term of office, tenure, and removal of [its] judges.” Colo. Const. art. VI, § 26. Moreover, a Chief Justice Directive from the chief justice of the Colorado Supreme Court states that “[t]he chief judge of the Second Judicial District shall not have administrative authority over the Denver County Court.” CJD 95-01, Preamble (amended Aug. 17, 2012), available at https://www.courts.state.co.us/Courts/Supreme_Court/Directives/95-01amended8-17-12.pdf. Thus, there are two distinct judicial bodies operating in the Courthouse, and the Second Judicial District apparently cannot speak for both.

For all these reasons, the Court finds that Plaintiffs are likely to prevail in their contention that Denver controls and speaks for the Courthouse Plaza. 4 Because Denver has stipulated that the Courthouse Plaza is a public forum, Plaintiffs are likewise likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum. See Cornelius, 473 U.S. at 800. 5

Moreover, the Court notes that the Second Judicial District has not specif ically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that “resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because [the Plaza Order] would satisfy even the strictest test.” (ECF No. 24 at 9.) Thus, the Court turns to the question of whether the Plaza Order can survive a strict scrutiny analysis. 6

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4 Ultimately, a Colorado state court may need to resolve this question. See, e.g., CJD 95-01 ¶ 15 (“Any disputes arising from the exercise of the authority described in this directive shall be resolved by the Chief Justice.”). In this posture, however, the Court need only conclude that Plaintiffs are likely to succeed.

5 If the Courthouse Plaza is indeed a public forum, it would be unique in that respect. The parties have not cited, nor could the Court find, a single case in which courthouse grounds were deemed a public forum. Cf. Huminski v. Corsones, 396 F.3d 53, 90–91 (2d Cir. 2005) (courthouse grounds not a public forum); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002) (same), abrogated on other grounds by Winter v. NRDC, 555 U.S. 7 (2008); Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006) (same); Schmidter, 103 So. 3d at 270 (same).

6 The ensuing analysis assumes, of course, that the Second Judicial District may attempt to enforce the Plaza Order through its own contempt power. If such power did not exist, there would likely be no reason to scrutinize the Plaza Order under any constitutional standard given Denver’s control over the Plaza and its stipulation not to interfere with Plaintiffs’ intended activities. (See Part III.A, supra.)
—————

3. Is the Plaza Order Narrowly Tailored to Serve a Significant Government Interest, and Does it Leave Open Ample Alternative Means of Communication?

“In [a] quintessential public forum[], the government may not prohibit all communicative activity.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also id. at 46 (holding that the government may un-designate a designated public forum, but until it does so, “it is bound by the same standards as apply in a traditional public forum”). The state may, however, “enforce regulations of the time, place, and manner of expression which [1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” Id. The Court will address each element in turn as it applies to the Plaza Order.

a. “Content-Neutral”?

The Plaza Order applies “without regard to the content of any particular message, idea, or form of speech.” (ECF No. 25-1 at 1.) On its face, then, it appears content-neutral. Plaintiffs have not argued otherwise.

b. “Narrowly Tailored to Serve a Significant Government Interest”

The Plaza Order itself asserts several interests:

. . . to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum . . . .

(Id.) However, in response to Plaintiffs’ Motion, the Second Judicial District has only defended the Plaza Order on the bases of preserving “the efficient functioning of the court” (e.g., unhindered ingress and egress to the Courthouse) and “maintain[ing] public safety.” (ECF No. 24 at 12.)

These are potentially “significant” government interests. Legitimate time-place- manner restrictions in a public forum can be motivated by “objectives [such as] public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002). But the Court finds on this record that Plaintiffs are likely to succeed in proving that the Plaza Order is not narrowly tailored to these stated objectives. Paragraph 1 of the Plaza Order bans essentially all expressive activity regardless of whether it would affect “the efficient functioning of the court” or threaten “public safety.” Courts look dimly on such “First Amendment Free Zones.” See Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); First Unitarian, 308 F.3d at 1132.

Moreover, in the Second Judicial District’s briefing (see ECF No. 24 at 12) and at the preliminary injunction hearing, it became clear that the sole motivating concern behind the Plaza Order was potentially violent protests that could follow if Dexter Lewis receives the death penalty. Steadman, the Second Judicial District’s witness, agreed that other measures could address that concern, e.g., he could arrange for additional security well in advance of any verdict announcement. He also agreed that Plaintiffs’ activities posed no greater threat to the Courthouse than it has faced in the last five years, when expressive activities have been unrestricted. Thus, the Court finds that Plaintiffs will likely demonstrate that at least Paragraph 1 of the Plaza Order is not narrowly tailored to serve the interests of maintaining public safety and the efficient functioning of the court.

c. “Leave Open Ample Alternative Channels of Communication”

Given the foregoing finding, inquiry into the alternative channels of communication is unnecessary. 7 The Court accordingly holds that Plaintiffs are likely to succeed in defeating at least Paragraph 1 of the Plaza Order under the strict scrutiny test applied to public forums.

————
7 The Court nonetheless notes Plaintiffs’ argument at the preliminary injunction hearing that their advocacy requires person-to-person contact because the concept of jury nullification is obscure and does not lend itself well to pithy slogans that can easily be chanted or placed on a placard (and therefore understood from a distance). Plaintiffs’ counsel could not cite this Court to any authority holding that those wishing to advocate complicated or lesser understood concepts receive more solicitude than others when it comes to available channels of communication. To the contrary, the case law suggests that the government can more easily restrict person-to-person interaction because of its potential for harassment. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773–74 (1994). The Court need not resolve the issue at this time, but only raises it as a matter of potential concern as this case progresses.
————

?C. Irreparable Injury

“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted). Moreover, the Second Judicial District offers no response to Plaintiffs’ irreparable injury argument. Accordingly, the Court finds that Plaintiffs will be irreparably injured absent a preliminary injunction.
?
D. Balancing of Interests

The injury to a plaintiff deprived of his or her First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). And again, the Second Judicial District offers no response to Plaintiffs’ argument that the balance of interests tips in their favor. Accordingly, the Court finds that the balance indeed tips in Plaintiffs’ favor, although the Court will issue the narrowest injunction possible so that the Second Judicial District is not unduly restrained in its ability to maintain safety and proper judicial functioning. (See Part III.F, infra.)?

E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. The Second Judicial District does not argue otherwise. The Court therefore finds that a narrowly drawn injunction would be in the public interest.

?F. Scope of Injunctive Relief

The Court will enter a preliminary injunction in favor of Plaintiffs. However, the Court will not grant an injunction as broad as Plaintiffs’ counsel requested at the preliminary injunction hearing. Plaintiffs’ counsel requested an injunction stating that their message and form of advocacy is protected speech, supposedly to protect against any other government agency that might try to silence them. But the Court cannot say (on this record at least) that Plaintiffs’ message and form of advocacy is always protected speech under all circumstances. In addition, an injunction must run against a party—this Court cannot enter an injunction against the world at large. See, e.g., Fed. R. Civ. P. 65(d)(2) (describing persons bound by an injunction). If Plaintiffs believe that a particular government agency is likely to attempt to silence them, they need to join that agency as a party and satisfy the preliminary injunction as against that agency. 8

Further, although Plaintiffs apparently seek to strike down the entire Plaza Order as unconstitutional, the Court will limit its injunction only to certain portions of the Plaza Order. As counsel for the Second Judicial District pointed out at the preliminary injunction hearing, the Plaza Order applies both inside and outside the Courthouse, but Plaintiffs have only challenged its restrictions outside the Courthouse. Accordingly, the Court will not disturb the Plaza Order as it operates inside the Courthouse.

In addition, the Court notes the Landscaping and Gravel Area in the East Restricted Area. Although no party discussed the scope of a potential injunction in these specific areas, the Court assumes for present purposes that Denver did not intend its public forum stipulation to authorize Plaintiffs to tramp through the Landscaping or the Gravel Area, both of which are ultimately designed for the Courthouse’s security. The Court therefore will not enjoin the operation of the Plaza Order as it applies to the Landscaping and Gravel Area.

The Court also notes that Plaintiffs have specifically alleged their intent to distribute and discuss the two pamphlets attached to their original complaint, “Fresh Air for Justice” (ECF No. 1-3) and “Your Jury Rights: True or False?” (ECF No. 1-4). At the preliminary injunction hearing, counsel for Plaintiffs reemphasized that these two pamphlets form the basis of what they wish to discuss. The Court will therefore limit its injunction to distribution of those specific pamphlets and oral advocacy of the message contained in those pamphlets.

Finally, only Paragraph 1 of the Plaza Order is truly at issue here. Plaintiffs have not challenged the Second Judicial District’s authority to prevent obstruction of the entryways (Paragraph 2), to prohibit the erection of structures (Paragraph 3), or to restrict sound amplification equipment (Paragraph 4). Thus, the Court will limit the injunction to Paragraph 1 of the Plaza Order. 9

————
8 Plaintiffs’ counsel expressed some concern that the Denver District Attorney’s office had been involved in the arrest of Brandt and Iannicelli and that the DA’s office might continue to pursue similar prosecutions. But Plaintiffs have not joined the DA’s office as a party, and in any event, in light of Denver’s stipulation with Plaintiffs, it is questionable whether the Denver Police Department would execute any arrest warrant based on Plaintiffs’ activities.

9 A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted). The Second Judicial District has not put forth any evidence of a likelihood of harm, nor has it argued that Plaintiffs should be required to post a bond. Having considered the issue sua sponte, the Court determines that a bond is unnecessary in light of the lack of likely harm to the Second Judicial District, and in light of the nature of the case. Cf. 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2015 update) (citing public rights cases where the bond was excused or significantly reduced).
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IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ and Denver’s Stipulation (ECF No. 23) is ACCEPTED and shall be treated as if an order from this Court; ?

2. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED; and ?

3. The City and County of Denver, its police chief, Robert C. White, in his official capacity, and the Second Judicial District (including their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with any of them) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows (all capitalized terms bear the respective meanings assigned above): ?

a. Save for any Plaintiff physically located on the Landscaping or Gravel Area, Defendants shall not enforce Paragraph 1 of the Plaza Order against any Plaintiff (including any FIJA member) physically located in the Restricted Area to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in the pamphlets titled “Fresh Air for Justice” and/or “Your Jury Rights: True or False?”

b. To the extent consistent with the foregoing prohibition, Defendants remain free to enforce Paragraphs 2–4 of the Plaza Order.

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

Pro-immigrant activists with Occupy Denver file suit against DIA and DPD, challenge airport free speech “permit”


DENVER, COLORADO- Civil liberties champion David Lane has filed a complaint in US district court challenging Denver’s office of the city attorney for instituting a permit process at DIA to prevent public protest. Holding signs has become impermissible at the airport, without the issuance of a permit seven days in advnace, although police are not bothering themselves about signs welcoming homecomers or seeking to connect business visitors with their limo service. That selective enforcement is unconstitutional of course, and the lawfirm powerhouse of Kilmer Lane & Newman is filing suit on behalf of two Occupy Denver plaintiffs. last Sunday, January 29, both were threatened with arrest by DIA police. While two earlier attempts to assemble had capitulated to DPD intimidation, the Occupy Denver activists stood their ground. Why did you file your lawsuit? “We know our rights. We want the POLICE to know our rights.”

1. Full text of complaint:

Case 1:17-cv-00332 Document 1
Filed 02/06/17 USDC Colorado Page 1 of 14

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

COMPLAINT

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, allege as follows:

INTRODUCTION

1. Plaintiffs Eric Verlo and Nazli McDonnell challenge a regulation of alarming breadth that bans all First Amendment expression at Denver International Airport without a permit.

2. Plaintiffs are concerned citizens who believe that President Donald Trump has overstepped his executive authority by signing the January 27, 2017, Executive Order (hereinafter “Muslim Ban”), which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit).

3. Plaintiffs wish to express their disgust with President Trump’s (likely unconstitutional) Muslim Ban. They wish to do so in the same place that hundreds of thousands of Americans across the country have done: standing directly outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within an airport where immigrants to America enter into the main terminal after clearing customs. Plaintiffs, unlike many citizens across this great nation who have exercised their opposition to the Muslim Ban in airports by chanting, singing, dancing, and praying, simply wish to stand in silent protest, holding signs that express their solidarity with immigrants and the Muslim community.

4. Plaintiffs are banned from doing so by DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”).

5. Regulation 50 states: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

6. Plaintiffs ask that this Court enjoin the enforcement of Regulation 50 and prohibit Defendants from arresting them for their First Amendment-protected activity of standing in peaceful protest within Jeppesen Terminal. Regulation 50 is overbroad in violation of the First Amendment and vague in violation of the Fourteenth Amendment’s Due Process Clause.

7. This is a civil rights action for declaratory and injunctive relief as well as fees and costs arising under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. Section 2201 et seq. due to Defendants’ current and imminent violations of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

PARTIES

8. Plaintiff Eric Verlo is a citizen of the United States of America. Mr. Verlo wishes to show his resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

9. Plaintiff Nazli McDonnell is a citizen of the United States of America. Ms. McDonnell wishes to show her resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

10. Defendant City and County of Denver is a municipal corporation and political subdivision of the State of Colorado. Thus, it is an entity subject to the provisions of § 1983.

11. Defendant Antonio Lopez is a Commander with the Denver Police Department. Commander Lopez is responsible for security at Denver International Airport’s Jeppesen Terminal.

12. Defendant Virginia Quinones is a Sergeant with the Denver Police Department. Sergeant Quinones is responsible for security at Denver International Airport’s Jeppesen Terminal.

JURISDICTION AND VENUE

13. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983; the First Amendment to the United States Constitution, incorporated as against States and their municipal divisions through the Fourteenth Amendment to the United States Constitution; and the Due Process Clause of the Fourteenth Amendment.

14. This Court has jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’ claims that “arise[] under the Constitution of the United States.”

FACTS

15. On January 27, 2017, President Donald Trump signed an Executive Order, which permanently banned Syrian refugees from emigrating to the United States, temporarily banned nationals of seven countries (including permanent legal residents and visa-holders), and suspended all applications to the United States refugee program (even as to vetted entrants currently in transit). President Trump’s Executive Order has been subsequently referred to as a “Muslim Ban,” because it both mirrors President Trump’s racist, anti-Islam statements made on December 7, 2015, that he was planning to ban all Muslims from entering the United States until our representatives can “figure out what’s going on” and the ban targets countries whose population is predominantly Muslim and seemingly bears little rational relation to each country’s security threat to the United States.

16. Immediately upon the enactment of President Trump’s Muslim Ban there was an outpouring of outrage from a large proportion of the American population and across the spectrum of political affiliation. This outrage led to resistance in the form of protests.

17. On January 28, 2017, and January 29, 2017, protests erupted in nearly every major city in the United States. The protests organically formed in our nation’s airports. Protesters chose to express their disgust with President Trump’s Muslim Ban in airports (and specifically outside of the secure CBP screening area) because individuals affected by the ban who were in transit to the United States were being held and questioned by CBP agents there. Many of these travelers, including lawful United States residents, were forced to sign documents revoking their lawful status within the United States and deported. Still others were simply deported with no explanation. Others still were held for hours as teams of lawyers rushed to prepare habeas petitions for their release.

18. News reports about the protests make clear that they have been peaceful and non- disruptive despite the gathering of, in some cases, thousands of people.

19. Airport staff have told protesters, and would-be protesters, at numerous airports across the nation, including Kansas City International Airport, that there are no restrictions on their speech and that all protesters who wish to participate in actions against the Muslim Ban are allowed. Protests have continued in other cities to this day.

20. On January 28, 2017, there was one such protest at Denver International Airport, within the Jeppesen Terminal. At approximately 5:00 p.m. hundreds gathered in the Jeppesen Terminal’s atrium, near arrivals, to protest and many others gathered to bear witness.

21. Prior to the protest, leaders had applied for a permit. It was denied. The reason for its denial was that the permit was not requested with seven days advance notice of the protest occurring. Regulation 50 requires seven days advance notice.

22. The January 28, 2017, protest began with speeches, chants, songs, and prayers. It was a peaceful gathering of solidarity for immigrants and Muslims. Every person at the January 28, 2017, protest was contained in an area of the Jeppesen Terminal atrium that is designed as a gathering space for people to sit, relax, and converse. No one was standing in the walkways or passageways of the terminal.

23. Soon after the January 28, 2017, protest began, members of the Denver Police Department arrived on-scene. Commander Antonio Lopez engaged the leader of the protest, Amal Kassir, along with State Representative Joe Salazar and representatives from the ACLU of Colorado, and informed them that the protest was unlawful. Commander Lopez told Ms. Kassir that anything that “could be construed as Free Speech” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit. See Exhibit 1, January 28, 2017 Video.

24. Commander Lopez also stated that all “First Amendment expression” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit on Regulation 50. Commander Lopez handed Regulation 50 to multiple protesters, including Ms. Kassir. See Exhibit 2, January 28, 2017 Video 2.

25. Regulation 50 states (in pertinent part): “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

26. Commander Lopez, along with members of Denver International Security, told Ms. Kassir that every portion of Denver International Airport property, which has an approximately fifty square mile footprint, is off-limits for First Amendment expression. They suggested that Ms. Kassir move her protest to Tower Road, which is approximately six miles from the Jeppesen Terminal and, like most of the land surrounding Denver International Airport, adjacent to open prairie land with no inhabitants.

27. Commander Lopez threatened Ms. Kassir and numerous other demonstrators with arrest if they didn’t immediately cease any “First Amendment expression.” According to Commander Lopez’s directives, the individuals gathered in the Jeppesen Terminal could not stand holding signs, sing, speak to others about matters of public concern, hold the United States Constitution above their shoulders, or stand silently with their arms interlocked.

28. Ultimately, to avoid arrest, Ms. Kassir and the demonstrators moved outside of the Jeppesen Terminal to the large area on its south side, adjacent to the escalators leading to the commuter rail and under the Westin Hotel. The protest continued peacefully for a little while longer, then disbursed without issue.

29. The next day, January 29, 2017, Plaintiffs Eric Verlo and Nazli McDonnell traveled to Denver International Airport’s Jeppesen Terminal to express their opposition to President Trump’s Muslim Ban.

30. Mr. Verlo and Ms. McDonnell brought with them signs expressing support for immigrants and expressing concern that history was repeating itself with disastrous potential consequences.

31. Mr. Verlo and Ms. McDonnell positioned themselves adjacent to the secure CBP screening area within the Jeppesen Terminal at approximately 1:15 p.m.

32. Adjacent the secure CBP screening area at the Jeppesen Terminal is the only place where Mr. Verlo and Ms. McDonnell can reach their intended audience. Mr. Verlo and Ms. McDonnell wish to communicate with those who could be swayed by their message and, particularly, with immigrants. International travelers are often immigrants and/or lawful United States residents, including green card and other visa holders, other than citizens. Mr. Verlo and Ms. McDonnell wish to express their solidarity with immigrants directly to these individuals. Further, United States citizens who arrive from international locations are also individuals with whom Mr. Verlo and Ms. McDonnell wish to communicate. International travelers have experienced other cultures and are likely to be sympathetic to Mr. Verlo and Ms. McDonell’s message.

33. The secure CBP screening area is also the location where the Muslim Ban has been enforced by DHS, both at Denver International Airport and across the nation. Neither Plaintiff attempted to enter any restricted areas of Denver International Airport.

34. While silently displaying their signs, Mr. Verlo and Ms. McDonnell were in the open plaza near the secure CBP screening area within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand. Mr. Verlo and Ms. McDonnell did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

35. Mr. Verlo and Mr. McDonnell also observed another man in the terminal, named Gene Wells, who was expressing views similar to theirs.

36. Mr. Wells was wearing a sign taped to the back of his shirt.

37. Mr. Wells left the Jeppesen Terminal, but subsequently returned to protest. When he did, he was stopped by Denver Police Department officers who told him that he could not walk around the terminal with the slogan he had affixed to his back. Mr. Wells eventually rejoined Mr. Verlo and Mr. McDonnell at the international arrivals doors, but not without trepidation. He feared he might be arrested.

38. While Mr. Verlo and Ms. McDonnell were displaying their signs, Defendant Sergeant Virginia Quinones approached Mr. Verlo and Ms. McDonnell and threatened them with arrest if they did not leave Jeppesen Terminal. See Exhibit 3, January 29, 2017, Video.

39. Sergeant Quinones handed Mr. Verlo and Ms. McDonnell Regulation 50 and cited it as the reason they would be arrested if they did not leave Jeppesen Terminal. Id. Sergeant Quinones told Mr. Verlo and Ms. McDonnell that they would need a permit in order to stand silently, holding signs in opposition of the Muslim Ban and be in compliance with Regulation 50.

40. Had Mr. Verlo and Ms. McDonnell applied for a permit the second President Trump signed the Executive Order implementing the Muslim Ban, they still would have been unable to engage in protest within the Jeppesen Terminal under the terms and conditions of Regulation 50 on January 29, 2017.

41. Mr. Verlo and Ms. McDonnell did not immediately leave the Jeppesen Terminal after being threatened with arrest. However, they were startled by Sergeant Quiones’ threat and feared arrest for the duration of the time they were there.

42. Throughout the time Mr. Verlo and Ms. McDonnell were expressing their views within the Jeppesen Terminal they received numerous shows of support from passersby. Multiple self- proclaimed Muslims expressed heart-felt statements of appreciation to Mr. Verlo, Ms. McDonnell, and others holding signs.

43. Mr. Verlo and Ms. McDonnell ultimately left Jeppesen Terminal.

44. Mr. Verlo and Ms. McDonnell wish to return to Jeppesen Terminal to express solidarity with Muslims and opposition to the Muslim Ban, but are reticent to do so for fear of being arrested.

45. Upon information and belief, no individual has been arrested, or threatened with arrest, for wearing a “Make America Great Again” campaign hat without a permit within the Jeppesen Terminal at Denver International Airport.

46. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign welcoming home a member of our military without a permit within the Jeppesen Terminal at Denver International Airport.

47. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign and soliciting passengers for a limousine without a permit within the Jeppesen Terminal at Denver International Airport.

48. Upon information and belief, no individual has been arrested, or threatened with arrest, for discussing current affairs with another person without a permit within the Jeppesen Terminal at Denver International Airport.

49. At all times relevant to this Complaint, Defendants acted under color of law.

CLAIM I: FIRST AMENDMENT
(§ 1983 violation – all Defendants)

50. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.

51. Regulation 50 violates the Free Speech Clause of the First Amendment to the Constitution, on its face and as applied, because it impermissibly curtails Plaintiffs’ free-speech rights.

52. Plaintiffs wish to speak on a matter of public concern. 11

53. Denver International Airport’s Jeppesen Terminal is a public forum.

54. Regulation 50 directly infringes upon and chills reasonable persons from engaging in activity that is protected by the First Amendment.

55. Regulation 50 acts as an unconstitutional prior restraint on speech because it (1) requires a permit before allowing individuals to engage in speech, (2) allows for arbitrary and/or discriminatory permit denials, and (3) requires advance notice that is unconstitutionally excessive.

56. Regulation 50 is overbroad.?

57. Regulation 50 is not narrowly tailored to serve a compelling government interest.?

58. Regulation 50 does not further a substantial government interest.?

59. Regulation 50’s restriction on expressive conduct is greater than necessary to further any
government interest.?

60. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly or
proximately, Plaintiffs to suffer damages.

CLAIM II: FIRST AMENDMENT RETALIATION
(§ 1983 violation – all Defendants)

1. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein. ?

2. Plaintiffs engaged in First Amendment protected speech on a matter of public concern ?while displaying signs opposing President Trump’s Muslim Ban on January 29, 2017.

3. Defendants jointly and on their own accord responded to Plaintiffs’ First Amendment protected speech with retaliation, including but not limited to threatening Plaintiffs with arrest.

4. Defendants retaliatory actions were substantially motivated by Plaintiffs’ exercise of their First Amendment rights.

5. By unlawfully threatening Plaintiffs with arrest, Defendants sought to punish Plaintiffs for exercising their First Amendment rights and to silence their future speech. Defendants’ retaliatory actions would chill a person of ordinary firmness from engaging in such First Amendment protected activity.

6. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

CLAIM III: FOURTEENTH AMENDMENT DUE PROCESS
(§ 1983 violation – all Defendants)

7. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein.

8. The prohibitions of Regulation 50 are vague and not clearly defined. ?

9. Regulation 50 offers no clear and measurable standard by which Plaintiffs and others can ?act lawfully.

10. Regulation 50 does not provide explicit standards for application by law enforcement officers.

11. Regulation 50 fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and authorizes or encourages arbitrary and discriminatory enforcement, or both.

12. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against Defendants, and grant:

(a) Appropriate declaratory and other injunctive and/or equitable relief; 13

(b)  Enter a declaration that Regulation 50 is unconstitutional on its face and enjoin its enforcement; ?

(c)  Compensatory and consequential damages, including damages for emotional distress, loss of reputation, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial; ?

(d)  All economic losses on all claims allowed by law; ?

(e)  Punitive damages on all claims allowed by law and in an amount to be determined ?at trial; ?

(f)  Attorney’s fees and the costs associated with this action, pursuant to 42 U.S.C. § ?1988; ?

(g)  Pre and post-judgment interest at the lawful rate; and ?

(h)  Any further relief that this court deems just and proper, and any other relief as ?allowed by law. ?

Dated this 6th day of February 2017.

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty

___________________________________
David A. Lane
?Andy McNulty?
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400 Denver, Colorado 80202?
Attorneys for Plaintiff

2. Full text of Feb 6 motion for preliminary injunction:

Case 1:17-cv-00332 Document 2
Filed 02/06/17 USDC Colorado Page 1 of 23

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, hereby submit the following Motion for Preliminary Injunction, and in support thereof, states as follows:

1. Introduction

Over the last four days, many Americans have expressed public disapproval of President Donald Trump’s January 27, 2017, Executive Order, which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit). Plaintiffs are concerned and alarmed United States citizens who wish to join the growing chorus of voices expressing opposition to the Executive Order. To do so, they wish to stand in silent protest at the Jeppesen Terminal within Denver International Airport.

Plaintiffs did just this on January 29, 2017, standing in silent protest of the Executive Order outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within Jeppesen Terminal. Almost immediately, Plaintiffs were threatened with arrest by Denver Police Department Sergeant Virginia Quinones for standing silently and holding signs opposing the Executive Order, despite that fact that the Jeppesen Terminal has previously been used for expressive activity (and that protesters at more than ten major airports nationwide have protested peacefully without major disruption or legal restriction). While silently displaying their signs, Plaintiffs were in the plaza within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand, in the open plaza outside of the secure CBP screening area at the Jeppesen Terminal. Plaintiffs did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

Even though Plaintiffs were simply engaged in peaceful First Amendment protected expression, they were threatened with arrest. Sergeant Quinones informed Plaintiffs that, in order to stand silently with political signs, they would need a permit. Without a permit, Sergeant Quinones stated, all “First Amendment expression” at the Denver International Airport was banned.

This was not the first time since the enactment of the Executive Order that the Denver Police Department threatened individuals with arrest for engaging in First Amendment protected activity in Jeppesen Terminal. On January 28, 2016, a protest was held in the plaza of Jeppesen Terminal. During the protest, Denver Police Commander Antonio Lopez instructed multiple individuals, including State Representative Joseph Salazar and representatives from the ACLU of Colorado, that all “First Amendment expression” was banned at Denver International Airport without a permit. See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2. The protesters had, in fact, applied for a permit earlier that day. However, it had not been granted because they had not done so seven days in advance of the protest in compliance with Denver International Airport regulations. Although no arrests were ultimately made, protesters were threatened numerous times by Commander Lopez, and other officers, with arrest.

The Denver International Airport regulation that both Sergeant Quinones and Commander Lopez relied upon in instructing Plaintiffs, and others, that Denver International Airport bans all “First Amendment expression” without a permit is DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”). Regulation 50 states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

Plaintiffs wish to return to Denver International Airport to protest the Executive Order, but are reasonably frightened of arrest and, absent action by this Court, must choose between lawfully exercising their First Amendment right and being subject to arrest and/or prosecution.

Plaintiffs ask that this Court enter an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.

2. Factual Background

All statements of fact set forth in the simultaneously filed Complaint are hereby incorporated into this Brief as though set forth fully herein.

3. Argument

3.1 The standard for issuance of a preliminary injunction.

When seeking a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm; (3) the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999).

The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006); see also 820 F.3d 1113, n.5 (10th Cir. 2016). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). Moreover, this “fair chance of prevailing” test is appropriate in this case because Plaintiffs are challenging a policy, not a statue or ordinance. See Planned Parenthood Minn, N.D., & S.D. v. Rounds, 530 F.3d 724, 732 (9th Cir. 2008) (“[C]ourts should… apply the familiar ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.”).

Under either standard, Plaintiffs are able to demonstrate that the issuance of a preliminary injunction is appropriate in this matter.

3.3 Regulation 50 implicates Plaintiffs’ First Amendment rights. 1

When the government regulates the exercise of First Amendment rights, the burden is on the proponent of the restriction to establish its constitutionality. Phelps-Roper v. Koster, 713 F.3d 942, 949 (8th Cir. 2013). Moreover, when assessing the preliminary injunction factors in First Amendment cases, “the likelihood of success will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). This is because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably, constitutes irreparable injury,” Heideman v. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003), and it is invariably in the public interest to protect an individual’s First Amendment rights. See Homans v. City of Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (noting that “the public interest is better served” by protecting First Amendment rights).

[NOTE 1. It is important to note that facial challenges to government policies and statutes, when based on First and Fourteenth Amendment grounds, are not disfavored. See United States v. Stevens, 559 U.S. 460, 473 (2010); City of Chicago v. Morales, 527 U.S. 41 (1999).]

3.4 Plaintiffs are likely to succeed on the merits.

Plaintiffs are likely to succeed on the merits because Regulation 50 violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

3.4(a) Plaintiffs engaged, and wish to engage, in speech on a matter of public concern.

Plaintiffs’ speech is at the core of the First Amendment’s protection because it deals with a matter of public concern. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks and citation omitted). “Speech on matters of public concern is at the heart of the First Amendment’s protection.” Id. at 451-52 (alterations and quotation marks omitted). “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Plaintiffs wish to engage in expression about President Donald Trump’s January 27, 2017, Executive Order, a topic that has generated nearly unprecedented debate and dissent. See Adrienne Mahsa Varkiani, Here’s Your List of All the Protests Happening Against the Muslim Ban, THINK PROGRESS (Jan. 28, 2017), https://thinkprogress.org/muslim-ban-protests-344f6e66022e#.ft1oznfv4 (compiling list of direct actions planned in response to President Trump’s January 27, 2017, Executive Order). Thus, Plaintiffs’ speech “‘occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’” Snyder, 562 U.S. at 452 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

3.4(b) Regulation 50 acts as a prior restraint.

The restriction at issue in this matter is a prior restraint. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984)). Regulation 50 is in an administrative order that forbids future communication and bases the ability to communicate in the future on the discretion of an administrative official. See DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” (emphasis added)). It is a prior restraint.

The burden of proving a prior restraint is permissible is particularly steep. The Supreme Court has repeatedly held that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). For the reasons outlined infra, Defendants cannot meet this especially significant burden.

3.4(c) Jeppesen Terminal, outside of the passenger security zones, is a traditional public forum.

The Supreme Court has not definitively decided whether airport terminals, including Jeppesen Terminal, are public forums. In Lee v. International Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992) (hereinafter “Lee I”), issued the same day as International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (hereinafter “Lee II”), the Supreme Court struck down a total ban on distribution of literature in airports. In Lee I, the Court issued a one sentence per curiam opinion, which affirmed the Second Circuit for the reasons expressed by Justice O’Connor, Justice Kennedy, and Justice Souter in Lee II. See Lee I, 505 U.S. at 831. Justice Kennedy and Justice Souter’s opinions in Lee II found that “airport corridors and shopping areas outside of the passenger security zones… are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles.” Lee II, 505 U.S. at 693 (Kennedy, J., concurring in the judgment); but see Lee II, 505 U.S. at 683 (“”[W]e think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”).

Therefore, Plaintiffs ask this Court to find the area of Jeppesen Terminal outside of the passenger security zones to be a public forum. The historical use of the Jeppesen Terminal’s plazas and other areas outside of the passenger security zones (including the area outside of the secure CBP screening area) for political speech (particularly, the history of welcoming of American military personnel home from service, discussion between passengers of matters of public concern, and display of clothing advocating for political views and ideals) indicates that it is a public forum. See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002) (“Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.”). Further, that the Jeppesen Terminal is free and open to the public (outside of the passenger security zones), illustrates that it is a public forum. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800, 805, 809 (1985). Finally, Jeppesen Terminal retains characteristics similar to parks: it has large plazas lined with benches, it is surrounded by businesses which are open to the public, and it has dedicated walkways, similar to sidewalks, indicating that it is a public forum. See e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988); United States v. Grace, 461 U.S. 171, 177 (1983). Further, the Supreme Court has not strictly limited the public forum category to streets, sidewalks, and parks. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (finding leased municipal theater is a public forum); Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (finding state fair is a public forum); Edwards v. South Carolina, 372 U.S. 229 (1963) (finding grounds of state capitol are a traditional public forum). Even if the City claims that it has never intended for Jeppesen Terminal to be a public forum, this is not dispositive. See Lee, 505 U.S. at 830 (government policy prohibiting distribution of literature at airport on property struck down); Cornelius, 473 U.S. at 805 (government’s decision to limit access is not itself dispositive). Plaintiffs’ ask that this Court find Jeppesen Terminal, outside of the passenger security zones, a traditional public forum.

Since Jeppesen Terminal is a traditional public forum, any restriction on Plaintiffs’ speech must be content-neutral and narrowly tailored to a compelling government interest. Regulation 50 fails at both.

3.4(d) Regulation 50 is content-based.

Regulation 50 is a content-based restriction of expression. Although the Supreme Court has long held that content-based restrictions elicit strict scrutiny, see, e.g., Carey v. Brown, 447 U.S. 455 (1980), lower courts diverged on the meaning of “content-based” until Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). 2 Reed clarified that a restriction is content based simply if it draws distinctions “based on the message a speaker conveys.” 135 S. Ct. at 2227. Reed is clear that even “subtle” distinctions that define regulated expression “by its function or purpose . . . are distinctions based on the message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. This accords with Texas v. Johnson, which held that “the emotive impact of speech on its audience is not a secondary effect unrelated to the content of the expression itself.” 491 U.S. 491 U.S. 297, 412 (1989) (internal quotations omitted).

[NOTE 2. Reed involved a municipal “sign code” that regulated signs differently based on the kind of message they conveyed (such as “ideological,” “political,” or “temporary directional”). 135 S. Ct. at 2224-25. The Court rejected the city’s argument that a law had to discriminate against certain viewpoints in order to be a content-based restriction. Id. at 2229.]

Regulation 50 is content-based on its face. It distinguishes between content and requires that an official determine the content of the speaker’s message when enforcing its proscriptions. Reed, 135 S. Ct. at 2227; see DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute[.]” (emphasis added)). The distinctions drawn by Regulation 50 make it a facially content-based restriction on expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412; Reed, 135 S. Ct. at 2227.

3.4(e) Regulation 50 is not narrowly tailored to serve a compelling government interest.

As a facially content-based restriction of expression at traditional public fora, Regulation 50 is presumptively unconstitutional unless Defendant “prove[s] that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 St. Ct. at 2231; accord Johnson, 491 U.S. at 412.

“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988) (citation omitted). Regulation 50 reaches more speech than that which would impair the security of the airport or ensure that passengers are not unduly encumbered. In fact, it completely bans all “First Amendment expression.” “A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id.. Regulation 50 is not such a ban. For instance, Plaintiffs’ expression does nothing to jeopardize security at Denver International Airport or to inhibit the free flow of passengers through the airport.

Further, any argument that Plaintiffs can engage in expressive activity in another location lacks merit, as the Supreme Court has held that the First Amendment is violated when one specific location or audience, when important to the speaker, is foreclosed. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014); Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997) (invalidating a “floating” buffer zone around people entering an abortion clinic partly on the ground that it prevented protestors “from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks”); Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (invalidating anti-handbilling ordinances even though “their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places”). Regulation 50 lacks the narrow tailoring necessary to survive First Amendment strict scrutiny analysis.

3.4(f) Regulation 50 violates the First Amendment even if this Court determines Jeppesen Terminal is a nonpublic forum.

Regulation 50 bans all “First Amendment expression” absent a permit; it is unconstitutional even when analyzed under the lower standard of scrutiny applied by courts to First Amendment political speech in a nonpublic forum. In Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), the Supreme Court considered whether a resolution restricting free speech in the airport was constitutional. The resolution at issue stated that the airport “is not open for First Amendment activities by any individual and/or entity.” Id. at 574. Although the Court did not explicitly find that the airport was a nonpublic forum, it did hold that the resolution restricting speech in the airport was facially unreasonable, even if the airport was a nonpublic forum. Id. at 573. The Court noted that enforcing the resolution would prohibit “talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574. The Court also noted, “[m]uch nondisruptive speech–such as the wearing of a T-shirt or button that contains a political message–may not be ‘airport related’ but is still protected speech even in a nonpublic forum.” Id. at 575 (citing Cohen v. California, 403 U.S. 15 (1971) (holding that wearing of jacket with offensive language in a courthouse was a form of nondisruptive expression that was protected by the First Amendment)). Thus, although specific conduct was not at issue in the Jews for Jesus decision, the Court nonetheless implicitly held that non-disruptive speech is protected by the First Amendment in nonpublic fora and that restrictions that encumber non-disruptive expression are unreasonable.

In Lee II, Justice O’Connor set forth the test for determining reasonableness in the context of nonpublic fora. 505 U.S. at 687 (O’Connor, J., concurring). 3 She stated, ”[t]he reasonableness of the Government’s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Id. (O’Connor, J., concurring) (quoting Cornelius, 473 U.S. at 809). However, Justice O’Connor noted that while “[o]rdinarily . . . we have . . . been confronted with cases where the fora at issue were discrete, single-purpose facilities,” airports present a different analysis because they are multipurpose facilities. Id. at 688 (O’Connor, J., concurring) (citations omitted). She determined airports to be multipurpose facilities because

the Port Authority [has] chosen not to limit access to the airports under its control, [and] has created a huge complex open to travelers and nontravelers alike. The airports house restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices and private clubs.

Id. This led to the finding that “[t]he reasonableness inquiry, therefore, is not whether the restrictions on speech are consistent with preserving the property for air travel, but whether they are reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id. at 689. A complete ban on First Amendment activity at the Jeppesen Terminal, absent a permit that must be obtained by providing seven days advance notice, is not a reasonable restriction. Regulation 50 does not comport with Justice O’Connor’s conclusion that airports are more than simply places where air travel occurs.

[NOTE 3. It is important to note that Lee involved a plurality opinion, joined by Justice O’Connor. Therefore, Justice O’Connor’s concurrence is the “narrowest grounds” that justify the Court’s result and her concurrence holds substantial precedential weight.]

Moreover, Justice O’Connor distinguished between solicitations (which the Supreme Court found could be reasonably restricted) and distributing leaflets (which the Supreme Court found could not be reasonably restricted) in the airport:

[L]eafleting does not entail the same kinds of problems presented by face-to-face solicitation. Specifically, “one need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand . . . . The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.”

Id. at 690 (quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)).

Thus, the Court held in Lee II that prohibiting solicitation in a nonpublic forum is not unreasonable, but that prohibiting the distribution of leaflets and other literature at a nonpublic forum is unreasonable. See also Lee, 505 U.S. at 830 (decided the same day as Lee II and striking down a prohibition on the distribution of leaflets and other literature at La Guardia, John F. Kennedy, and Newark International airports) (per curiam). Circuit courts have also recognized the inherent right to distribute paper and other information in nonpublic fora. Following Lee I and Lee II, two circuit courts have held that airports, as nonpublic fora, could not preclude newspaper publishers from placing newsracks in airport terminals. See Jacobsen v. City of Rapid City, South Dakota, 128 F.3d 660 (8th Cir. 1997); Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993). To the extent that the airports were concerned about safety or the impediment of traffic flow, the courts held that the airport may impose reasonable restrictions, but they could not enforce an outright ban on the newspaper racks. See Jacobsen, 128 F.3d at 660; Multimedia Publishing Co. of South Carolina, Inc., 991 F.2d at 154.

Denver, through Regulation 50, has banned all “First Amendment expression” including leafleting and protests. In fact, Plaintiffs expression is arguably less intrusive and disruptive to air travel than the form of expression, namely leafletting, that the Court held could not be reasonably restricted in the areas of an airport that precede the security screening area. It is clear from Lee I, Lee II, and Jews for Jesus that Denver cannot ban all “First Amendment expression” at the Jeppesen Terminal.

3.4(f)(1) Independently, the viewpoint-based prohibition of Plaintiffs’ speech, based on Regulation 50, violates the First Amendment.

Even if Jeppesen Terminal is a nonpublic forum, “this does not mean the government has unbridled control over speech, . . . for it is axiomatic that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (quoting Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, (1993)). “Restrictions on speech in nonpublic fora must be viewpoint neutral[.]” Warren v. Fairfax Cty., 196 F.3d 186, 193 (4th Cir. 1999) (citing Cornelius, 473 at 809). Defendants’ restriction of Plaintiffs’ speech, under the guise of Regulation 50, discriminates on the basis of viewpoint. Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest. Regulation 50 is being enforced as a clearly view-point based restriction. Defendants’ application of Regulation 50 to Plaintiffs speech is view-point based and violates the First Amendment.

3.4(g) The seven day advance notice requirement for obtaining a permit is not a reasonable restriction.

Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. Plaintiffs, like many others throughout history, wish to engage in First Amendment expression in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. See American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”).

Advance notice requirements that have been upheld by courts have most generally been less than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is reasonable for use of National Park areas in District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir. 1968) (two-day advance notice requirement for parade is reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054, 1059 (D. Mass. 1980) (three-day advance filing requirement for parade permit approved in context of broader challenge); Jackson v. Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain permit by 4 p.m. on day before the march), aff’d, 442 F.2d 928 (5th Cir. 1971). Lengthy advance filing requirements for parade permits, such as the seven day advance notice requirement imposed by Regulation 50, have been struck down as violating the First Amendment. See American-Arab Anti-Discrimination Comm., 418 F.3d at 605-07 (holding that provision requiring thirty days’ notice is overbroad and is not saved by an unwritten policy of waiving the provision); NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) (“[A]ll available precedent suggests that a 20-day advance notice requirement is overbroad.”). Even an advance filing requirement of five days has been held too long to comport with the First Amendment. See Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (city’s asserted goals of protecting pedestrian and vehicular traffic and minimizing inconvenience to the public does not justify five-day advance filing requirement for any parade, defined as ten or more persons).

It is clear that, in the case at bar, a permit requirement of seven days advance notice is not a reasonable restriction of Plaintiffs’ First Amendment rights. Plaintiffs wish to engage in timely, direct action against, what they perceive as, a tyrannical and unconstitutional exercise of the executive power. If Plaintiffs were to have applied for a permit at the exact moment President Trump signed the Executive Order, they would still have been prevented from engaging in First Amendment activity on January 29, 2017. In direct action, like in most things, timing is everything. As evidenced by myriad protests that occurred across the nation’s airports, which were accompanied by no violence or destruction of property and did not otherwise jeopardize security, accommodation of protest at the Jeppesen Terminal is reasonable. Such a lengthy approval period, with no exceptions for spontaneous, peaceful protests, violates the First Amendment. See Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (noting that “the length of the required period of advance notice is critical to its reasonableness; and given … that political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech” (emphasis added)).

3.4(h) Regulation 50 is overbroad in violation of the First Amendment.

“[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the [ordinance]’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). An overbroad statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it. City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) (“[B]roadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.”). The Supreme Court “has repeatedly held that a government purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964); see also Grayned v. City of Rockford, 408 U.S. 109, 114-15 (1972) (“The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.”). Courts have “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

Determining whether a law is substantially overbroad requires a two-step analysis. First, a court must “construe the challenged [law]; it is impossible to determine whether a [law] reaches too far without first knowing what the [law] covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Second, based on the first step, a court must determine whether the law “criminalizes a substantial amount of protected expressive activity.” Id. at 297.

Regulation 50 provides that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” Those tasked with enforcing Regulation 50, have stated that it bans all “First Amendment expression.” See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2.

A complete prohibition on First Amendment expression and related activity proscripts a substantial amount of protected expressive activity. See Jews for Jesus, 482 U.S. at 569; Lee, 505 U.S. at 830. It prohibits face-to-face conversations and wearing clothing intended to convey a message, along with leafleting and other traditional First Amendment activity, all of which protected expression. Regulation 50’s overbreadth is stark and violates the guarantees of the First Amendment.

3.4(i) Regulation 50 is unconstitutionally vague.

“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “A law’s failure to provide fair notice of what constitutes a violation is a special concern where laws ‘abut[ ] upon sensitive areas of basic First Amendment freedoms’ because it ‘inhibit[s] the exercise’ of freedom of expression and ‘inevitably lead[s] citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Stahl v. City of St. Louis, 687 F.3d 1038, 1041 (8th Cir. 2012) (quoting Grayned, 408 U.S. at 109). For this reason, a stringent vagueness test applies to a law that interferes with the right of free speech. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

Regulation 50 is vague, and therefore unconstitutional, for two separate reasons. First, Regulation 50 fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999). A law is unconstitutionally vague where it “does not provide people with fair notice of when their actions are likely to become unlawful.” Stahl, 687 F.3d at 1041. Because violators of Regulation 50 are subject to criminal sanction, the strictest vagueness test applies. See Reno v. ACLU, 521 U.S. 844, 872 (1997) (recognizing criminal sanctions might “cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images” which, together with the “‘risk of discriminatory enforcement’ of vague regulations, poses greater First Amendment concerns than those implicated by [a] civil regulation[.]”). Whether expressive activity will be deemed “First Amendment expression” in the Jeppesen Terminal is not predictable. Plaintiffs have reasonably refrained from protected speech for fear that someone might consider their expression to be in violation of the regulation. However, officials have failed to enforce the regulation against many others who are seemingly in violation, including those discussing politics with other passengers, wearing clothing meant to make some social or political statement, limo drivers soliciting passengers, and those welcoming home military veterans. Although there might be times when a speaker knows, or should know, that certain speech will violate the statute, in many situations such an effect is difficult or impossible to predict. See Stahl, 687 F.3d at 1041 (finding vagueness because even “[t]hough there are certainly times when a speaker knows or should know that certain speech or activities likely will cause a traffic problem, in many situations such an effect is difficult or impossible to predict.”). Regulation 50 fails to give fair notice and therefore violates the mandates of the Fourteenth Amendment.

Regulation 50 is also unconstitutionally broad because it “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S. at 56. Regulation 50’s terms allow law enforcement officials wide discretion to decide whether any given speech is prohibited and arrest the speaker. “Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.” Cox v. Louisiana, 379 U.S. 536, 579 (1965); see Norton v. Discipline Comm. of E. Tenn. State Univ., 399 U.S. 906, 909 (1970) (“Officials of public universities . . . are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.”).

Officers have been observed enforcing Regulation 50 against those protesting President Trump’s Executive Order, but not against those wearing other political shirts or buttons. Officers have not enforced the regulation against other political expression, including those standing in support of military veterans returning home from combat. Seemingly, the only ones who have been subject to this regulation are those who are specifically speaking against President Trump’s Executive Order. “The most meaningful aspect of the vagueness doctrine is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574. Because the terms allow a police officer leeway to determine that expressive conduct is lawful, or not, they are vague. Regulation 50 permits “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (internal citations omitted). It is unconstitutional.

3.5 Absent an injunction, Plaintiffs will suffer irreparable harm.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016); Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016).

Moreover, Plaintiffs’ expression is a time-sensitive response to a nearly unprecedented action by our federal government. But see C. Norwood, A Twitter Tribute to Holocaust Victims, THE ATLANTIC (January 27, 2017), https://www.theatlantic.com/politics/archive/2017/01/jewish-refugees-in-the-us/514742/ (describing the rebuff of refugees fleeing Nazi Germany in 1939, many of whom would be murdered during the Holocaust); Korematsu v. United States, 323 U.S. 214 (1944). Delaying Plaintiffs’ protest, and discouraging Plaintiffs and others from demonstrating, detracts from its importance and provides a false appearance that Denver is not like other cities of all sizes across the country that have mustered sizeable protests at their airports. Denver has held itself out as a “sanctuary city.” Jon Murray, Mayor Hancock says he welcomes “sanctuary city” title if it means Denver supports immigrants and refugees, The DENVER POST (January 30, 2017), http://www.denverpost.com/2017/01/30/mayor-hancock-welcomes-sanctuary-city-title-denver-supports-immigrants-refugees/. For Colorado’s citizens to seemingly show lackluster support in this time of trial would not only irreparable harm Plaintiffs, and others, but it would go against the public interest.

3.6 The balance of the equities weighs in favor of granting a preliminary injunction.

“The balance of equities… generally favors the constitutionally-protected freedom of expression.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). Courts have consistently held that when First Amendment freedoms are threatened, the balance of the equities weighs in the Plaintiffs’ favor. See Verlo, 820 F.3d at 1127; Awad, 670 F.3d at 1132. There is no harm to Defendant, who has no significant interest in the enforcement of Regulation 50 since it is likely unconstitutional.

3.7 A preliminary injunction is in the public interest.

“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1133 (internal quotation marks omitted); accord Verlo, 820 F.3d at 1127; Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”); Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

4. Conclusion

For the reasons stated, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction, enjoin enforcement of Regulation 50, and prohibit Defendants from arresting Plaintiffs and all others similarly situated when they engage in First Amendment protected activity within Jeppesen Terminal.

Dated this 6th day of February, 2017

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
__________________________

David Lane
Andy McNulty
1543 Champa Street, Suite 400 Denver, CO 80202
Counsel for Plaintiffs

Dem presidents won’t chose better supreme court justices than Repugs

NOW we’re told the ultimate reason to prevent a Trump presidency is because he’ll appoint Supreme Court judges who will set progressive movements back for generations. You forget that President Obama’s latest nomination put the lie to that bugaboo. Put it to bed and burned it. Upon the fortuitous demise of one of the most corrupt justices ever, Antonin Scalia, who died literally, in bed with a crony patron, President Obama submitted for consideration as his replacement the conservative jurist Merrick Garland. Garland’s most notable legal achievement was to indemnify the US regime from charges of torture. I’m sure voters in 2008 elected Obama to uphold Democratic ideals not scuttle them. We’re being sold the same pitch with Hillary, really without any basis in fact, that a democrat will attempt to curb the Supreme Court’s antisocial conduct, as exemplified by the Thomas, Alito, Kennedy, Roberts cabal. The Garland nomination has also exposed the other lie, that Trump’s appointments could not be opposed. As we see with Garland still, SCOTUS nominees can be embargoed indefinitely.

Sorry Rage, Trump Ain’t the Machine

Immortan DonaldThere’s news from Cleveland, about to host the 2016 RNC Republican National Convention. Rage Against the Machine is planning a reprise of the show they PUT ON for DNC 2008 where they harnessed teen angst against America’s dystopian future (thus against its corporate party conventions) but FOR Barack Obama.

In 2008 the House of Bush was already falling. Now it’s 2016 and this time Immortan Joe is the ascendant Donald Trump apparently. Because Trump is a thought-criminal and troll racist, it seems that all pop, sub, and call-out culture agents agree that the next US president must not be Trump. I find it not in the least ironic that the machine thinks so too.

Rage Against the Machine’s Tom Morello is scheduling an encore performance of Denver’s DNC 2008, another counter-subversive star turn for the Democratic Party. In 2008 Rage quelled unrest to smooth the reception for Change Double-Agent Barack Obama. The corporate TM Rebels want to do the same for Hillary, this time directing their indignation at social injustice provocateur Donald Trump.


In 2008, Rage harnessed teen and counterculture angst and hitched it tightly to a stake in the mosh pit, a political assembly agitated but meant to go nowhere. Rage threw a free performance which drew thousands from the streets, as if a Rage concert memory would match the excitement of a protested convention. Of course those who were waylaid will never know. Even seasoned activists fell for the lure because Rage promised afterward to lead their stadium audience straight to the Pepsi Center to confront Obama and the DNC.


Not what happened. RAGE appointed Iraq Veterans Against the War as their favored antiwar agitants, whose MO has always been commemorative not rebellious, crowd participation encouraged only under a strict chain of cammand. With the IVAW, Rage members led the audience on stations of the cross “march” across downtown Denver exhausting protest energy and converting participants into spectators. It looks like Morello intends to do the same thing for Cleveland.

And I have no doubt they’ll succeed. Already social justice movements are feeding the trolls as if Donald Trump wasn’t merely another Westboro blowhard. Radicals from Antifas to Zapatistas think Trump is the face of US Fascism and must be stopped. Trump does spout ignorance and racism, though he hasn’t bombed or executed anyone. Does Trump embolden American racists and zenophobes or is that the machine’s framing?

Must Trump’s idiocies be rebutted? Must, for example, the Westboro Baptist Church be counterprotested? Normally everyone gets the wisdom of not feeding the trolls.

Ask the candidates: who, as president, vows to jail Obama, Clinton and Bush?


If Americans really want to differentiate which presidential candidate represents change, a good question would be, which will prosecute America’s celebrity war criminals? Who, among them, will jail past leaders guilty of crimes against humanity?

Obama 2008 didn’t do it. President Obama didn’t even close Guantanamo, end torture, or disarm drones. By failing to curb Pax America’s wars of aggression, Obama too should now stand in the docket. Wasn’t it hoped, as Bush and Cheney helivac’d from the White House, that Obama’s “change” meant calling that chopper back for a return to accountability? At minimum, superficially? Justice didn’t happen, Obama didn’t want to look back, and the villains remain to foul the political discourse as foils to perpetuate high crimes and to normalize the forgiving of greater trespasses.

Is American exceptionalism fathomless? ISIS hasn’t grown out of the terrible twos yet already John Kerry wants to charge it with genocide; not to haul ISIS perps before the Hague –extrajudicial assassination by drone circumvents that– but because genocide law holds that those who do not condemn it are its accessories.

How far does culpability reach among our active enablers of war crimes? It extends into our pool of candidates certainly, but how far? Does Senator Bernie Sanders, at one edge, consider himself an accessory to the crimes of past and current administrations? It’s possible Sanders voted against the wars, interventions and regime changes, but will he prosecute those who did not?

Donald Trump stands on the periphery as well, avaritic criminality is not alas a purview of the International Criminal Court, but he does seem an unlikely candidate for honoring the rule of law let alone conscience.

Still, would it hurt to ask? An independent party candidate might have the only acceptable answer. Who, as president, will honor humanity’s highest laws? Who will hold state terrorists accountable?

Oh you are so going to feel the burnie

Remember all those highschoolers and college students activated for Obama 2008, subsequently thoroughly BURNED OUT by the zero yield of Hope or Change for all their effort? It’s happening again on campuses across the country and yes it’s hard not to celebrate their optimism this time around again, even though they’re backing the same corporate party and same promises that have always corraled leftward idealists for the capitalist slaughterhouse. What tragic irony that their catch phrase is “Feel the Bern” because who is going to be feeling that pun ultimately? I’ll cheer them on because good intentions should always be rewarded, but I’m going to start calling their candidate BURNIE.

Is Palin writing for SNL or vice versa? Who are this election’s screenwriters?

Remember when Sarah Palin gave her infamous 2008 Katie Couric interview? Palin’s disordered responses were so Miss Teen Carolina that Saturday Night Live writers didn’t have to wring out a parody. Instead Tina Fey brought down the house by repeating Palin’s folksy schtick verbatim. Essentially SNL added a laugh track. Every week the entire country tuned in to SNL in anticipation of Fey’s mimicry act. Eight years later Palin has come out of the wood paneling to endorse fellow freak Donald Trump. Immediately everyone is salivating for the SNL instant replay. Hmm.

It seems Sarah Palin has reprised her role as fount of Ugly Americanisms and I have to wonder. Maybe SNL’s humorists hadn’t caught a break after all. Maybe they had been hard at work in preproduction. Working on Sarah Palin as season pilot. Gag writers didn’t have to write a Palin parody because they drafted the original jokes.

We like to think of our comedians as authors of their own brilliant wit, yet we know their TV talk shows employ gaggles of writers. It’s true from Comedy Central to the Tonight Show. Why do we give a village idiot like Sarah Palin credit for her seamlessly funny imbecility?

Or Donald Trump for that matter? Trump has yet to miss a single sour note or plumb an inoffensive punchline with his every gutterance.

If we recognize the American two party system and its lesser of bogeymen false choice as an unchanging melodrama, we must consider the show has its screenwriters. Palin and Trump and Hillary and Bernie are reciting lines already tested on focus groups, seasoned to our taste, to manufacture consent for political continuity.

And how about casting directors? Somebody is deciding who gets the screentime. Why is anyone asking Sarah Palin’s opinion about Trump or anything for that matter. What qualifies Palin to opine at all? She’s been neither public figure, candidate, governor, nor mayor of Alaska’s meth capitol, since she came and went two elections cycles ago.

Political kingmaking is frequently attenuated by media gatekeepers but clearly the casting decisions they make are based on viewership ratings.

If there’s a show with cast and crew, there’s a showrunner. Elsewhere in TV-land the spotlights is regularly turned on them. I’m not talking about campaign managers or party heads, they are the stage managers or Don Pardos at best. Showrunners are the real auteurs, if that word doesn’t lend excessive dignity to their oeuvre, which is crap.

Team Obama 2008 won advertizing’s most prestegious award for that brand’s successful campaign. The Cleo is an industry award, generally outside the public’s viewshed. Of course the awards should have been Emmys.

If you want to see the real wits behind the scenes, it’s time to unmask the twits. Exile them to Reality TV where they belong. Let us accept or reject the showrunners if you’re going to pretend this is a democracy.

Bernie Sanders Hope and Change 2.016

Bernie Sanders two point oh sixteen
YOU’RE WELCOME. The same civic dutyists activated by Obama 2008 are already in the trenches for Bernie, making no apologies, showing no insight about the nowhere they delivered voters the first time around. In effect, the Obama deadheads have found a new phishy bandwagon, and it reeks of the same neoliberal speciousness. Who would have thought an old white guy would be the new hope change candidate? Bernie Sanders is the Democratic Party, itself the good-cop half of the corporate capitalist imperialist machine. Bernie didn’t “win” the Democratic candidate debate, the winner was the Democratic Party, which came off favorably compared to the lunatic GOP. These days the GOP is condemned by whoever is showrunning Election 2016 to play the bogeyman to the lesser of lessers. Cue Bernie Sanders. Though he talks a great game, he’s never walked it. Bernie wants a political revolution, but it’s a counter-revolution in populist clothing.

The frequently cited St Paul Principles had their time and place: ST PAUL


In my circle they’re called “Saint Paul’s Principles” because my colleagues think the edicts are Catholic I guess. The St Paul Principles came from St Paul Minnesota, circa 2008, and were formally adopted by the varied groups organizing to disrupt the Republican National Convention of 2008. They’ve lived on as guiding principles for activists of all ilk. In 2011 many Occupy encampments ratified the StPP as their own code of conduct, indifferent to whether they were applicable or even beneficial. Let’s examine the well intended dogma. Do they apply universally? Are they constructive? And how did they work out for St Paul? The last one is easy. As you may remember, disruption of the 2008 RNC failed spectacularly.

The St. Paul Principles

1. Our solidarity will be based on respect for a diversity of tactics and the plans of other groups.

2. The actions and tactics used will be organized to maintain a separation of time or space.

3. Any debates or criticisms will stay internal to the movement, avoiding any public or media denunciations of fellow activists and events.

4. We oppose any state repression of dissent, including surveillance, infiltration, disruption and violence. We agree not to assist law enforcement actions against activists and others.

It’s hard to argue against this elegant expression of solidarity. With the SPPs, the protest organizers aimed at preempting COINTELPRO style disruption from generating conflict within the movement. The implicit condemnation of violence was of state sponsored violence, not authentic barricade defense. And no snitching. The SPPs addressed the problems which were already scuttling Denver’s 2008 DNC protests. In Denver, “Recreate ’68” planners let the press infer they meant to revive the Chicago riots of 1968, prompting almost every traditional social justice group to circulate a contract which everyone was expected to sign. It was a vow of nonviolence. Organizations who refused to sign were ostracized and could expect the violent police clobbering they invited.

Essentially the SPPs aimed to unite the nonviolent and non-nonviolent activists, to ensure neither denounced the other, and that physically neither wound up caught in each other’s fights or sit-ins. Probably the chief concession was being asked of the nonviolent crowd: Please, as long as we promise not to shroud your family atmosphere and your baby strollers in tear gas, please let the Black Blocs do their thing without your repudiation. Please. We share the same goals.

Can you begin to see where such a strategy might fail to lead?

But the St Paul organizers did share the same goals. Their aim was to disrupt the RNC via a strategy they called “3S” actions. SWARM, SEIZE. STAY. It’s easy to see why three years later Occupy Wall Street was attracted to these directives. “3S” defines Occupy and another three years on, OWS activist followed the 2014 Climate March with an action called “Flood Wall Street” the instructions for which rephrased 3S aquatically.

The “movement” to which the SPPs refer shared a goal, to disrupt the RNC, by means of swarming, seizing, and staying, by whatever tactic each member group wanted. They shared a further agreement, that the city of St Paul was to be partitioned in sectors allowing groups to conduct their actions in isolation, united in time, but separated geographically so that red zone, yellow zone and green zone participants needn’t mix and find themselves out of their respective confort zones.

The groups organizing against the 2008 RNC shared one more thing in common, bound as they were to the St Paul Principles, they were all signatories to the principles.

Do the St Paul Principles apply universally?
It’s easy to see that the 2011 OWS occupations in major cities across the country shared a similar goal. It was, if perhaps more vague than to prevent a party convention, to disrupt the wheels of commerce by means of encampments; the “3S” tactic now reduced to a single verb “Occupy”. Allies such as unions and antiwar organizations, while sympathetic, cannot be said to have shared the same determinaton to disrupt. Even MoveOn with their “99% Spring”, FireDogLake with their merchandizing, and Adbusters had to relent with the revolutionary rhetoric. Eventually OWS spinoffs like Occupy Sandy Relief began to serve functions diametrically opposed to disruption. Did they expand the “movement”? Of course. But did the more inclusive “movement” outgrown the capacity for St Paul Principles to maintain its unity? Are activists bent on disruption expected to respect and support activists determined to prevent disruption?

I know it’s lovely to imagine every social justice effort as anti-authoritarian, and whether nonviolent or indulgent, each comprises a unique wing of a broad anti-government movement. If you are prepared to pretend that everyone’s aims are progressive, we share similar enough goals and we are reformists. But if some aims are revolutionary, explicitely anti-Capitalist for example like Occupy Wall Street, then reformists are counterrevolutionary. If you think reformists aren’t Capitalism’s first line of defense, even as they consider themselves activists, then you don’t know your adversaries from your allies. To imagine that activists shouldn’t address such chasms of understanding in favor of upholding popular delusion is going to get a movement nowhere.

At last year’s Climate March in NYC, the prevailing sentiment was against Capitalism. The organizers didn’t want to mouth it, but a vast number of marchers began to grasp instinctively that Capitalism has no solution for Climate Change. The anti-Capitalist movement can become “the movement” but reformists will have to understand they are obstructionists before they as individuals can be said to share the common goal.

The St Paul RNC Welcoming Committee aimed to disrupt the Republican National Convention for a WEEK. Can activist groups as they grow and transform over years and compete for membership and community resources expect that they shouldn’t be critical of one another’s missteps or aggressions even as their goals diverge?

How scalable are the St Paul Principles? Do they apply to no matter who considers themselves part of a greater “movement”. Do they apply to signatories and non-signatories alike?

Are the St Paul Principles constructive?
I would argue: Hardly. While it seems safer to segregate the Black Bloc from the civil disobedients from the family picnic crowd, you’re not going to reach critical mass with each on its own. With public dischord still in its infancy and while we have nowhere near the numbers to defend against or deter violent repression, perhaps it is only reasonable to program our street protests according to color zones, as if marches were amusement rides for protest tourism.

If you’re satisfied to lead combatants to jail and probation for mere symbolic shows of defiance, and you’re prepared to let nonviolent activists subject themselves to brutality which even when filmed will not awaken the conscience of the sociopathic oligarchs, and you’re resigned to let the masses burn themselves out with boredom given nothing to challenge their apathy, then the St Paul Principles are for you.

Je Suis a Goddamn Neoliberal Meme… Je Suis Charlie, Neda, Kony, Save Dafur

40 world leaders march for Charlie Hebdo
A million people mobilized in Paris, including 40 WORLD LEADERS!? How long have their limousines been queued? I usually brag that our corporate foes can’t manufacture consent in the streets, except when they do.

I AM NEDA, KONY 2012, SAVE DARFUR, now JE SUIS CHARLIE are purely neoliberal consolidations of public support. They’re televised Nurenburg rallies masked as spontaneous demonstrations. Add “I AM ___” to “______ Spring” and colored revolutions as dead giveaways of psy-op inspired counterrevolution.

With NYPD turning their backs on their mayor and Westboro Baptists making the protest of soldiers look unreasonable, the choices are narrowing for activists who want to define their struggle with tactics not splooged upon by the lumpen knee jerk Fascists.

A woman approached me yesterday at an anti police brutality demonstration in solidarity with Ferguson. She agreed with the cause, but wanted to know why we weren’t also speaking out for abused children, for example those thrown off bridges by deranged parents. While child abuse has its systemic causes, the answer highlights what differentiates insurgent demonstrations from the false. People take to the streets to challenge power, not to gang up with power to further its oppressive agendas.

Duh. Except the lure of popular causes seems to be irresistable to social justice types normally starved for public support. I saw the “Save Darfur” project twist and fracture my local peace community. Obama Lincoln 2008 had the same effect, another socially engineered bandwagon.

I’m not galled by the hypocracy of world leaders “marching” in Paris, pretending to stand for press freedoms. I’m upset my the millions of Frenchmen duped into attending their photo-op. Those millions of Frenchmen in the same street should have trampled the World Bank kapos underfoot, instead of pretending the corporate cabal were people too.


(Remember when I AM NEDA protests failed to tie a viral snuff vid to false accusations of election fraud in Iran?)

Oops. McDonalds shill Ryan Lochte says he ate sponsor’s food in Beijing, won fewer medals.

Literally, Ryan Lochte scored his piece of silver at the 2012 London Games for endorsing McDonalds’ unolympian crap-food. But in London Lochte waited until after his competitive events to “go to McDonalds”. His fellow shill Michael Phelps added a vicarious, thus safer, third person endorsement, as one might exclaim “He’s going to Disneyland”. At the 2008 games in Beijing, Lochte purports to have eaten the official sponsor’s crap “for breakfast, lunch and dinner over 10 days” but came away with one less medal. Lochte didn’t see SUPERSIZE ME to know his fast food mythology has already been debunked.

Code Pink thinking with its vagina, our apologies in advance for the language

Just kidding, about the anatomical reference giving offense. Not kidding about Code Pink “Women for Peace” thinking with their vaginas, making it the theme to their callout for the Tampa RNC in August. Agreed, men thinking with their reproductive organ is far more common, and generally dishonorable, but turnabout is fair play isn’t it? Usually formidable antiwar powerhouse Code Pink is dropping its protest of drones and military intervention for the RNC, in favor of conferring legitimacy to the GOP’s 2012 wedge issue, the War on Women. Does this presage a tempered message at the DNC, a la DNC 2008, where Barack Obama got a pass from Code Pink though he was the antiwar candidate in hope only?

“United For Global Change” is Madison Ave dilution of “Global Democracy” cry. Oct 15 not for Obameaningless change

15 Octubre, Global Democracy, now subverted to United For Global ChangeUNITED FOR GLOBAL CHANGE certainly smacks of the meaningless slogan that swept President Hope to power. My guess is that this is Advertizer Omnicom’s contract PR redesign to subvert the worldwide Global Democracy movement sparked by Spain’s Indignant rebels and the Arab Spring. Original promotional materials called for GLOBAL DEMOCRACY, which meant something obviously, but might confuse Americans who think their illusion of democracy is enough, spread via Pax Americana. Global “Change” is a straw man open to pundits critical of unspecific demands, “Democracy” less so.

Omnicom is just a guess, they’re the outfit who saved McDonalds’ skin with “I’m lovin it” and who was contracted by the USG to sell Obama’s Wars to the international public. I forgot who won all the Addy in 2008 for the ad campaign of the year, brand “Obama.”

United For Global ChangeInternational demonstrations scheduled for October 15th are more than protests in solidarity for Occupy Wall Street in NYC. OCT15 is a call for DEMOCRACIA REAL YA, which I’m sorry, doesn’t translate to REAL *CHANGE* NOW! What’s change anymore but an Obamaesque meaningless platitude? Dispiriting is the infusion they’ve intended.

“United for Global Change?” Yeah, I don’t think so. First it’s hard to swallow that “change” translates more universally than “democracy.” Second, President Obama’s neo-grassroots orgs are obviously trying to seed anticipation of 2012 with a meme of international support. We Are Change, Be the Change, Democrats For Change, Democratic Change, Change That Works, Change Happens –whatever. In your dreams Democratic party. The world isn’t taking to the street to settle for an Obama Nothing Revolution.

Wanna bet that this Global Change job was commissioned by something akin to Change International, funded by a USAID affiliate, dispersing funds meant to promote CIA-styled Democratic Astroturf pro-US counterrevolutionaries in regions not yet sufficiently subservient to US multinational extraction industries?

So what if an establishment vanguard has succeeded in rebranding OCT 15 for placebo consumption. By all means please join the marches Saturday, regardless your unlike-minded companions. The vocabulary will be mixed, the media is already preparing headlines using the approved slogan makeover, but fear not, the rest of the world is marching for real Democracy and everyone knows it.

Oslo bomber was less Christian Jihadist than Dexter, Arrested Development

Nike Swoosh logo adapted for Dexter serial killer tv series, pattern for Oslo bomber Anders Behring Breivik

Another excerpt from Breivik’s dairy, covering the preliminary phases, backdated to 2002:

Personal reflections and experiences during several preparation phases April/May 2002

I am the Norwegian delegate to the founding meeting in London, England and ordinated as the 8th Justiciar Knight for the PCCTS, Knights Templar Europe. I joined the session after visiting one of the initial facilitators, a Serbian Crusader Commander and war hero, in Monrovia, Liberia. Certain long term tasks are delegated and I am one of two who are asked to create a compendium based on the information I have acquired from the other founders during our sessions. Our primary objective is to develop PCCTS, Knights Templar into becoming the foremost conservative revolutionary movement in Western Europe the next few decades. This in relation to developing a new type of European nationalism referred to as Crusader Nationalism. This new political denomination of nationalism will become the foremost counterweight to National Socialism and other cultural conservative political denominations, on the cultural right wing. Everyone is using code names; mine is Sigurd (the Crusader) while my assigned mentor is referred to as Richard (the Lionhearted). I believe I’m the youngest one here.

I am going to discontinue my involvement in the Norwegian Progress Party as I have lost faith in the democratic struggle to save Europe from Islamification. After 65 years of harsh political oppression, demonization and ridicule from the communist-globalist cultural establishment, directed at any and all who opposes multiculturalism, there are still no indications that this communist-globalist hegemony will ever allow PP to take control. My party is systematically vilified and sabotaged by a united media before every single election. And even if they ever did manage to form a majority government with Høyre (the Conservative Party) their principles and party program would not be conservative enough to halt the ongoing Islamic demographic warfare OR increase the ethnic Norwegian fertility rate from 1.4 to 2.1. The only thing PP has achieved so far is to give false hope to Norwegians. They say that democratic struggle is the only solution, when it is clearly already lost. How can we democratically compete with a regime that is mass-importing hundreds of thousands of new voters? The PP is pacifying Norwegians by giving them false hope and I refuse to continue to have any involvement in this. Armed struggle appears futile at this point but it is the only way forward.

2002-2006
I am required to build a capital base in order to fund the creation of the compendium. I don’t know if I will ever proceed with a martyrdom operation at this point as it simply seems too radical.

My plan A is to attempt to acquire 3 million Euro, in which case I plan to establish a pan- European organizational platform that will attempt to grow organically as a support organization which will distribute a “legal version” of the compendium.

If I fail to generate the specified amount I will move forward with the operation, in order to market the compendium that way.

As of 2005 I have managed to generate 500,000 Euro, but I am still 2.5 million Euro short. I will attempt to generate the remaining amount through continued stock/options speculation. I can afford to lose up to 250,000 Euro without it compromising the completion of the compendium and the subsequent effectuation of the operation.

Stock/option speculation did not work out. I will need to cut my losses and proceed to plan B.

After cutting my losses, I now have a minimum of funds to complete my two tasks (in excess of 250,000 Euro).

2006-2008
Researching and writing the compendium: “A European Declaration of Independence”

Autumn – 2008
I attended a birthday party in Oscarsgate, Oslo. We were attending a birthday party organized by a good friend of Axels’ girlfriend, Synne. I noticed the woman who celebrated her birthday was working as a judge. A majority of the people at the party where jurists – judges and lawyers in the public sector. I chatted with most of the people at the party. It really struck me how incredibly politically correct everyone were, as if they were all members of the Norwegian Labour Party. I have never before experienced a group of people who are completely freaked out about discussing political issues relating to multiculturalism and Islamization. I noticed a majority of these people were Labour Party sympathizers. I guess they don’t really have a choice considering the fact that they are all climbing the public sector hierarchy. A thought occurred. The judges during WW2 who had party affiliations with the NS or any affiliation with the SS were prosecuted and imprisoned. Is it therefore only fair that judges of high rank with party affiliations to the Labour Party and the other parties who support multiculturalism (and therefore Islamization) are to be considered category B or C traitors? They obviously have a considerable responsibility and should be considered traitors of their people. I would imagine most of them would be considered category C though as their influence is considerably less prevalent than that of any parliamentarian, editor/journalist or university professor/lecturer. In any case, nice people though and we had a good time. If only they had any idea that one of their guests was a Justiciar Knight of an organization affiliated with the Norwegian and European Resistance Movement, I would be thrown out immediately most likely. It is completely understandable as their careers would be over if they had any affiliation with such organizations or individuals.

Autumn – 2009 – Birthday party
My best friend, Peters, 30th birthday. We are going to Budapest to party hard for 5 days. This is my second trip to Hungary. I really love that country and the people. Clubs in Buda are top notch. Excellent elektronica scene, among the best in the world. Hungarian girls are hot as hell, too bad I have to avoid relationships for the good of my mission. Doesn’t hurt having fun though 😀 I don’t think I’ve consumed this much alcohol for many years, totally awesome. My best friends, Martin, Axel, Marius and Peter went down and hooked up with another band of Norwegians we have known for some years. One of Martins best friends are Jon-Niclas, really cool guy. He’s a rather well known Norwegian comedian, together with his partner and friend Anders, and a few others. We had a lot of fun down there, the ten of us. Most of us know each other from Nissen High School in Oslo.

Autumn – 2009 – Phase shift
I’m in a phase shift with my project. The compendium is complete and I currently preparing for the next phase. I’m creating two different and “professional looking” prospectuses for “business ventures”. A mining company and a small farm operation. The reasoning for this decision is to create a credible cover in case I am arrested in regards to the purchase and smuggling of explosives or components to explosives – fertilizer. In this regard I created a new company called Geofarm, which might act as a credible cover for such activities. I spent about 2 weeks cannibalizing an existing Mining prospectus. In addition to the prospectus I have created I will create two websites and business cards. I also intend to contact suppliers of equipment related to these industries so that they may act as future witnesses, collaborating my story, should I ever need it. If I do get arrested in this “acquirement phase” I figure that they will have a hard time proving that my intention is to contribute and fight in the ongoing European civil war. Sure, they will attempt to charge me with terror but they will not have enough evidence to incarcerate me (due to my covers). Also considering the fact that I have never done anything illegal in the past. If I do get caught I will, however, be placed on every imaginable watch list for the rest of my life and will thus be unable to partake in any advance operation. In this case I will have to cancel the primary operation and instead go with my secondary operation of lesser significance. Such is the life of a resistance fighter.

November – 2009
I’ve spent a few weeks contributing to set up a cultural conservative newspaper with national distribution in Norway. The idea is to develop Document.no, a cultural conservative blog into a newspaper company with 12 publications per year. I’ve developed a relatively complex strategy and forwarded it to Hans, the editor and manager. I have made a few attempts to seek funding although my efforts haven’t materialized yet. I tried to formalize cooperation between the Progress Party and Document (both moderate cultural conservative entities), at least in an incubation period. However, after discussing this with both FrP and Hans it would appear as they do not want to take part in any form of cooperation with each other. I have spent approximately 50 hours developing potential strategies for Document.no, pro bono, but I will have to limit any further involvement due to my primary operation. Hans Rustad, the leader of Document.no, seems like an odd fellow. I’m usually excellent in psycho analyzing people but I haven’t figured him out at all. I know he has a Marxist background and I believe he is in fact something of a rarity – an actual national Bolshevik, and thus not a real nationalist. He likes to criticize the multiculturalist media hegemony in Norway but is completely unwilling to contribute to create any form of political platform or consolidation. He seems extremely paranoid and suspect of most people and he likes to attempt to ridicule and mock Fjordman, every time he writes a comment. Document.no has developed into a kind of moderate cultural conservative think tank where moderate cultural conservatives exchange thoughts and make comments on the articles posted. Hans likes to criticise cultural Marxist media (MSM) but is unwilling to present any solutions or to contribute to any form of consolidation of an “alternative”. Despite of that, I don’t mind contributing somewhat as it benefits our cause, regardless.

December – 2009
I’ve now worked with email farming for two months. God, I wouldn’t have imagined it was going to be this f…… boring 😀 I’m using Facebook to target various nationalist related groups and inviting every single member. I’ve managed to farm approximately 1,700 email addresses this way. I did generic swipes of various blogs and internet sites earlier this year as well. Total number of email addresses is approx 3,000-5,000, haven’t made an exact count yet <3 Ofc, it’s a quite tedious task due to the fact that Facebook has a 50 invitations cap per day. Even with my two accounts I’m limited to inviting a maximum of 100 per day, where an average of 40-50% accepts. Of these 40-50% around 90% have email addresses whereas approx only 50% are checked on a regular basis. So of 1,000 Facebook friends I will achieve a penetration rate of around 20-30%. Not optimal but then again, I can’t think of a more efficient way to get in direct touch with nationalists in all European countries. Christmas – 2009
Have been in a few Christmas parties with friends, fun although I’ve gained some extra kilos 😀 I’m currently 7 kg overweight up 3-4 kilos the last three months. I started the hardcore training program a few months ago but chose to end it in order to complete the book and email farming process. At this point I’ve extended the writing phase 4 times due to the urge to extend certain chapters. These delays are starting to severely affect my budget leaving me with less than 42k Euro in direct funds and another 25k in credit. I really need to finalize this compendium soon and move on to next phase (research into weaponry, armor and explosives followed by acquirement phase). Will have to destroy my old hard drives and buy new ones before the research phase, and then destroy these ones again before acquirement phase. It takes ages to farm quality email addresses from Facebook.

Anyways, moral is on an all time high but physically I’m at an all time low. I really need to start my training program soon… but still aprox 1-2 months before my time budget allows me to focus on this. Btw, I just read that an alleged Swedish neo-Nazi group, who allegedly planned to assassinate Swedish category A and B traitors, had been uncovered in connection with the theft of the “Arbeit macht Frei sign”. Hmm, I always wondered if these guys are actually National Socialists or if it’s just typical cultural Marxist propaganda. Perhaps it’s my fellow co-founder of PCCTS, my sister-cell??? I guess I won’t find out unless they publish the names. I doubt it though. They seem to be using the outdated, traditional and vulnerable hierarchical military cell-model which indicates that they are from an old school and un-related resistance fraction.

January 2010
I was out with Peter and Didrik today. We had some drinks at Peter’s bachelor pad near Bogstadveien, probably the most prestigious place to live for bachelors in Oslo and not far from where I used to live when I was still in the “game”. We then went on to a nearby restaurant, had an incredible meal, drank some more and met Peter’s girlfriend and her friends. We had a few beers and talked, very cosy <3 I remember telling Christine about my career as a writer, telling her that I wasn’t planning on actually selling the book but rather to distribute it freely in order to more efficiently propagate our cause to a broader audience (they were all cultural conservative btw). Christine told me that she believed I was driven by idealism, which is of course true, but that I actually lived my dream. While I didn’t want to start to argue that particular factor, as I don’t like appearing like a pooper or to risk blowing my cover, it got me thinking. Are, we, the reactionary revolutionary conservatives really living our dream or are we making a sacrifice? To be honest, if I felt that other people could do my job I would not do what I do, that I can guarantee you. I don’t want to do what I do, I would rather focus on starting a family and focus on my career again. But I can’t do that as long as I feel like a person caught in a burning spaceship with nowhere to go. If you see the ship is burning you don’t ignore it and start cooking noodles do you? You put out the fire even if it endangers your life. You don’t enjoy putting out the fire but it is your duty to yourself and your fellow crewmen. And let’s say your crewmen have been infected with a rare virus that shuts down their rational senses and they try to stop you from putting out the fire. You can’t really allow yourself to be stopped by any of them as it will lead to your collective death. You will do anything to put out that fire despite of the fact that they are trying to stop you. Anything else would be illogical. But sacrificing yourself for others who probably detest you for it doesn’t necessarily have to be a miserable experience. After all, we have the truth and logic on our side and we will learn to find rewards and comfort in our actions. After all, sometimes being uncompassionate is the most compassionate thing you can do. Anyway, back to email farming on Facebook, aaaaarrrrggh :/ It’s driving me nuts, lol. I’m currently working on French leads/FB groups. An extremely tedious and boring task – preparing quality contacts from scouring patriotic Facebook groups and sending out 100 select invitations per day (from 2 FB accounts). I’ve been doing this for 60 days straight now, 3-4 hours per day. FB networking isn’t all that bad though as you do meet a lot of interesting, like minded people. This is the main reason why my book has been delayed. I just feel that I must send my book to at least 10 000 primary nationalists in the European world and I’m currently at 6000 email addresses. Good vocal trance music makes this task a lot less boring ;). My funds are depleting gradually though; currently at 50,000 Euro + 30,000 Euro in credit limits (12 credit cards ftw), which will force me into the next phase of the operation soon. A usual day for me involves email farming, writing, sharing “moderate” resources from my book on debate groups to coach fellow cultural conservatives, smoking, eating chocolate lol, taking a daily 1 hour walk/motivational meditation and doing some occasional battlegrounds in WoW on my badass Horde resto druid. I just completed Dragon Age Origins not long ago. A brilliant game! 😀 It’s important to have fun a few hours every day. I regret to admit that I’ve become a notorious downloader of pirated movies, series and games etc. but have noticed that an increasing number of sites have been closed down lately. Stealing is bad, I admit, but then again, when you have devoted your entire life to a good cause you can allow yourself some naughtiness especially if it can contribute to conserve your funds, cough ;). Yes, yes, no one's perfect 😛 February 2010
I just bought Modern Warfare 2, the game. It is probably the best military simulator out there and it’s one of the hottest games this year. I played MW1 as well but I didn’t really like it as I’m generally more the fantasy RPG kind of person – Dragon Age Origins etc .and not so much into first person shooters. I see MW2 more as a part of my training-simulation than anything else. I’ve still learned to love it though and especially the multiplayer part is amazing. You can more or less completely simulate actual operations.

I’ve continued with email farming until now, on a daily basis. The email farming phase is coming towards its end and I will conclude it by at least attempting to acquire as many email addresses to members of parliament in Western European countries as possible. Because I think focusing solely on distributing the compendium to patriots would be a mistake as they have little to no political influence in the EUSSR/USASSR hegemony. It is important that our enemies know “how we see what they are doing”. The national intelligence agencies of Europe will do everything they can to limit its distribution. They will not allow the parliament members of any nation to read it, so we must send it directly to them.

It’s a shame I have to purge my 5,000 Facebook contacts. It took so much time and work to acquire all those contacts and I get the feeling I’m purging a little piece of my life, lol. But I did get what I came for after all; every individuals email address.

It is still too snowy and cold to initiate the acquirement phase (acquirement of weaponry and armor etc). My agenda the following months looks like the following:

1.
Conclude email farming

2.
Conclude the writing of 2083 and secure it. This post will be one of my last entries. I will have to secure the compendium at a safe location until the week before operation (today is Feb 7th btw).

3.
Change hard drives (phase shift), purge all evidence from other phase.

4.
Initiate the research phase: research the possibilities for the acquirement of weaponry and armor, the making of WMDs (explosives), acquirement of components of WMD, research of logistics and storage opportunities.

I have budgeted 2 weeks for the research phase, but it might take up to 6 weeks.

The research phase will be followed by the acquirement phase where I have budgeted 4-8 months. The acquirement phase will be followed by a one week only construction/preparation phase.

Btw, I just received what looks like a mass recruitment message from one of my 5000 Facebook contacts (he’s wearing a balaclava in his pic btw with a t-shirt with the SS skull insignia). The message goes like this:

Hails!

“help support are worldwide organization ATB Aryan Terror Brigade a branch Of blood and honour, if you are interested reply…..”

While I have to admire the young lad’s initiative and probably noble intention (he probably doesn’t have the faintest clue what National Socialism or constructive and meaningful resistance is) the lack of subtlety and discretion is unfortunately the current trademark of many European amateurish resistance groups. They probably want recruits in their Jew/immigrant bashing efforts… Many of these people are causing so much damage to the nationalist cause that I sometimes wonder if they are on the payroll of the cultural Marxists. Regardless, my hope is that this compendium will contribute to a significant “leap in evolution” of the current climate of cluelessness and incompetence.

March 2010
I have ended my “email acquisition phase” ending up with a grand total of 5,700 Facebook contacts (2 accounts) and a total of 8,000 high quality email addresses (representing all spheres of cultural conservative thought). I now have a direct way forwarding my compendium to a good portion of the most dedicated nationalist oriented individuals in all Western European countries, including the US, Australia, Canada, South Africa, certain Eastern European countries, Armenia, Israel and even India. This task has taken me several months and it pained me to purge all my FB contacts. I’ve talked and discussed with hundreds of patriotic individuals (many whom are nationalist oriented intellectuals fighting the good fight), many good people, which made the decision to purge the contacts even harder. I have now moderated by FB profile considerably and transformed it to a politically correct profile. I do fear sometimes that my endeavors relating to the research of the book, and acquisitions of these addresses has resulted in me being put on various watch lists. I know that at least a few of the profiles I invited are fake, and used for information gathering for various European and US intelligence agencies. The question is; have they flagged me? I guess I will find out eventually…

I went ahead and sold some of the last sets of items I possessed, from my former life, which had value. It was a complete 40 piece Versace-Rosenthal dinner set worth approximately 5,000 Euros. I bought it a few years ago for 2,000 Euros and just sold it for that price. I know I should sell my Breitling Crosswind (new price: 7,000 Euros), but sentimental value has thus far prevented me from doing that. Actually, I still have a corporate HP printer (new price 4,000 Euro). I may attempt to sell that later as it’s pointless for me to own one. I do have a quite large booze and wine collection which I have collected over the years. Several of the red wine flasks are from 1979, and therefore possibly worth a fortune. I do appreciate a glass of vintage red wine so I may actually drink it, prior to execution of operation. I have given away a few of my paintings to friends. I will keep the rest hanging, as I still appreciate the works.

The compendium is in its last phase. I have worked quite hard the last two months to complete it. I estimate that I will be able to complete it within 2 weeks.

Time is of the essence, and I really need to start the research phase (for the actual operation) and begin on the physical transformation phase. I have to wait until I have secured the compendium at multiple locations and purged and destroyed my hard drives.

Moral is peaking. I can’t wait to share the compendium with fellow brothers and sisters. This will be one of the last entries btw. I may or may not add more to this log prior to execution of operation.

July 2010
I recently successfully finished the “armor acquisition phase” and have created an armor cache by secured a full Pelican case underground. I basically dug it down somewhere deep in the Norwegian forest. It was my first experience with this type of assignment and I underestimated the planning needed to complete the job. A few days ago, I got up at 5.00 in the morning and spent a couple of hours packing for the trip. By using Google Earth I had selected a desolate location (approx), deep in the forests of Norway. I did not yet know the exact location when I set out on the trip, loaded with my cargo. The Pelican case contained a complete set of Lokis armor – shield included, caltrops, police insignias and various other equipment needed for the operation. I was unable to place the Damascus FX- 1 Flexforce riot suit and the Molle, pouch carrier in the Pelican case so I stashed it on the attic marking it as “air soft equipment”. That will have to do… The Pelican case was so full I had to physically sit on it to be able to lock it properly.

Anyway, after about a 3-4 hour drive I arrived at the area and I started to scout for small roads of the highway, as a car parked by the highway would cause unwanted attention. I found one potential location and drove my little Hyundai weenie car down a dirt road. These cheap urban cars are obviously not for off road use so I almost ended in the ditch. I parked the car and scouted the area on foot for an hour but with little success. An appropriate location involves finding an area with soil that you can actually dig in so it excludes areas close to rocks or near trees (all the roots will make it too hard to dig). I drove for half an hour and started scouting another location. I found what I thought could be an appropriate dig site and fetched the shovel and two big plastic covers for initial testing of the soil. I could tell by the topography that not many people had been here before. The forest was very compact with a lot of spider webs, and hundreds of flying bugs around. I have serious issues with spiders so I just had to block those thoughts out. Of course, it was a giant rock just 10 cm below the soil of my first attempt… Regardless, I continued digging close by and eventually found a suitable spot. When in the “identification process” you should expect a few unsuccessful attempts. You should at least dig 1.5-2 meters vertically and you obviously need a little bit of luck. I was considering getting an echo sensor gadget for this purpose, which can reveal whether there are obstructions below the ground etc. However, getting one would be a hassle, so I just decided to do it the old fashion way.

I started digging at 11:00 and continued for three hours straight. There were a lot of mosquitoes annoying the hell out of me despite of the fact that I was covered in anti-mosquito oil. Why oh why didn’t I bring a mosquito head-net… Due to the intensity of constantly digging, the heat and sweat forced me to remove everything except my boots and my Skins compression gear. The bugs had a field day for sure… Digging for hours is exhausting but I continued pushing my tolerance level as I really wanted to finish before dark. At around 16:00 I was out of water, I had emptied by 1.5 litre Camelbak pouch. I had been digging continuously for 5 hours and was completely exhausted, yet I hadn’t even finished digging the hole… I was getting increasingly frustrated as I couldn’t go on much longer without water. As I didn’t want another day of this hell (4-6 hours driving total + digging) I made the best out of the situation and went to prepare the cargo in my car for transportation to the dig site. I had originally planned to split the content of the case into four and carry it in my backpack to the site. The case was too heavy to transport in one go without problems. Unfortunately, with my water issue I really had no choice. I literally dragged the 70 kg case to the dig site. It was extremely exhaustive but it saved me approximately 30-60 minutes. At 18:00 I had secured the case underground and filled in all the dirt. I then spent around 40 minutes concealing the dig site by transporting branches and leaves from other parts of the forest. After one and a half hours drive I finally reached a gas station. I was quite dehydrated at the time. Needless to say; that was the best coke and hotdog I had consumed in ages…

I realize that I rushed the end process due to the fact that I had underestimated several aspects of “dig site management”. I will not make the same mistake when I’m securing my weapons after the “weapons acquirement phase”. Lesson learned.

August 2010, 1
Phase shift – armor phase to weapons phase; hard drive replaced with new one, and all evidence from former phase purged. I’m preparing for a car trip to Prague to establish a weapons connection for the acquisition of an assault rifle, a Glock, splint grenades and AP ammo (grenades and AP ammo is a bonus). Prague is known for being maybe the most important transit point for illicit drugs and weapons in Europe. I spent a couple of days planning the trip as it takes around 15-17 hours to drive and it involves the car ferry from Sweden to Denmark and another ferry from Denmark to Germany. I might just take a car ferry from Oslo to Germany. It will be hard to avoid using my visa during this trip but I will try. My mobile will be turned off during the entire duration and will only be turned on in an emergency. I have researched all relevant information; hostel info for Copenhagen, Berlin and Prague. If I fail to accomplish my objective in Prague my secondary attempt will be in Berlin. If that fails as well I will drive all the way to Serbia. My encounter with the criminal networks in Prague will not go without risk. I will have to try to establish a connection via Taxi drivers, and/or through the clubbing/prostitution scene. I just hope I make it out alive… I will at least avoid all ferries and electronic payments on the return trip and cross the northern border (it has minimal presence of custom officers), just in case I am somehow under surveillance. Better to be safe than sorry etc. When I return and secure the weapons I can finally initiate the “explosive phase”. More on that in another chapter.

August 2010, 2
As the “armor acquirement phase” has been successfully completed it is now time to move on to the “weapons research phase” followed by the “weapons acquirement phase”. I’m planning a road trip to Denmark and Germany as backup targets and Czech Republic as the primary destination with the intention of buying an AK-47 (7.62) and a Glock 17 or 19 (9 mm).I’ve spent the last two to three weeks researching clubs or similar places where medium-scale drug dealers frequent. Drug dealers are the best bet when looking to establish a weapons connection, after all. They, or their suppliers, have functional smuggler routes from other East bloc countries, the Balkans and from Turkey. While they prefer to trade drugs, due to the space efficient nature of narcotics, they are usually able to provide weapons as well. If they don’t have any weapons in stock, they are usually able to order arms from their couriers.

I can’t say I’m looking forward to this trip. I’ve heard that Prague is the most dangerous capital in Europe with a lot of very brutal and cynical criminals. There is a chance ill get killed down there by some desperate criminal individual. In any case; I’ve prepped by car, hollowed out the back seats of my Hyundai Atos and it should be room for weapons, a few frag grenades and AP ammo. The car is really crap so I hope it won’t break down in the middle of the autobahn. Several people on the Hyundai forum said I would never reach my destination and back in that car, lol. I guess we will see… The reason I chose it in the first place is that it looks like a pensioners car, so it not likely that I will be stopped in customs controls when I smuggle the arms back to Oslo.

Today is the day; I’m driving down to the ferry now. It will take me from Oslo to Kiel, whereas I need to drive approx 9 hours straight to Prague where I have booked a 6 day stay at a relatively cheap hostel. I have usually gone with hotels in the past but they are not great for socializing. Nothing beats a Hostel when it comes to partying and getting to know people etc. This trip is going to be a fascinating experience. I’m just trying not to think too much about what might happen when I approach drug dealers. I’ve decided I want to get most out of the trip so I have made a schedule including visits to all of Prague’s tourist attractions. I will do this during the day time, and go clubbing at night looking for a connection.

I’m been two days in Prague. I’ve sorted a few tasks I wanted to do. One involved professionally printing prospectuses which will serve to strengthen my cover stories in case I get apprehended pre-operation. The prospectus is basically a Mineral Extraction business plan explaining in detail why I would need to create explosives. The cover story involves the manufacturing of explosives without a permit. Everything is specified in the prospectus which should be enough to create a reasonable doubt regarding any potential terror charges, should I ever get caught. I also got several police ID badges and other related insignias professionally printed, paying cash of course. Printing these back in Norway would only result in the clerk notifying the authorities.

So only one thing remains; I need to find my weapons connection within 4 days…! I failed miserably yesterday; I went to two brothels and a couple of clubs. The people I approached got really nervous and thought I was either a cop or completely nuts, lol. I have had to refine my approach pitch. It started off really bad. Whatever you do when trying to establish a gun connection, never be too direct;

Hello there; I want to buy an AK-47, 4 frag grenades, 1 Glock and AP bullets. (Guy will run for the hills before you have completed the last sentence 🙂

This city doesn’t seem dangerous at all btw. I have no idea why that BBC documentary would present such incorrect information. In fact, I feel even safer here than back in Oslo. Probably because there is basically no Muslims living in this country. Most of the criminals here are Christian Gypsies and I have found out that most of them have been basically chased away from the capital, Prague, to other Czech cities. I can understand why the government would want to do this. Prague is like a giant Museum of ancient European historical sites and attracts millions of tourists annually. All the criminals that was here a few years ago was bad for business. I have never seen this many tourists in any other European city; Paris, London and Berlin included. Downtown Prague is packed with thousands and thousands of tourists, even now in September.

Day 5 in Prague. I’m getting desperate. This is the first major setback for me during my operation. I am so disappointed by myself. I realize now that Prague is far from the ideal city when looking to buy arms. Western European capitals are probably a more suitable location to establish a connection as that is the end destination of the arms that come through here. Prague may be a transit point but finding the actual couriers or sellers has proven to be a hard task. Also, I guess I wasn’t motivated enough, considering the fact that I could have just purchased a legal semi automatic rifle and a Glock in Norway. I have approached several shady looking individuals but I would have tried a lot harder if it weren’t for the fact that I could buy guns legally.

I have now decided to abort this sub-mission and rather focus on acquiring the weapons I need legally, back in Norway. Regardless of the outcome of this mission; I have had a great vacation and have experienced most of the historical sites and a lot of amazing architecture. I’ve also partied a lot with the people I met at the hostel. Time to go home…

The trip back was a bore. My Ipod batteries died halfway to Copenhagen. I stayed the night at a hostel and drove from Copenhagen to Oslo the next day.

September 2010
I originally wanted to try establishing a connection with Hells Angels in either Prague, Berlin or Copenhagen. However, I lost my motivation completely during my first few days in Prague. I now have to acquire a semi-automatic rifle and Glock legally. I don’t think the rifle will be a problem, as I have completed the 1 week duration hunter course, and I have had a Benelli Nova Pump-Action shot gun for 7 years without incident. I don’t have a criminal record so there is no reason why the police should reject my application.

I have now sent an application for a Ruger Mini 14 semi-automatic rifle (5.56). It is the most “army like” rifle allowed in Norway, although it is considered a “poor man’s” AR-15. I envy our European American brothers as the gun laws in Europe sucks ass in comparison. However, the EUSSR borders to Turkey and the Middle East so acquiring illegal arms isn’t exactly rocket science providing you are motivated enough. In any case; I would rather have preferred a Ruger Mini 30, but I already own a 7.62 bolt rifle and it is likely that the police wouldn’t grant me a similar caliber. On the application form I stated: “hunting deer”. It would have been tempting to just write the truth; “executing category A and B cultural Marxists/multiculturalist traitors” just to see their reaction 😛

Acquiring a pistol, legally, is more tricky. I have been a member of Oslo Pistol Club for a few years but it is required that you train regularly in order to be eligible. I will have to train more often this winter and ensure I build up a solid track record, which in turn should enable me to get a permit.
I have now changed my hard drive, again, and I’m now going to start the “explosives research phase”. I’ve been looking forward to this phase for a long time.

October-November 2010
I have just completed the “explosives research phase” and have summarized several new chapters for the compendium. My rifle application came through and I have now ordered a 800 Euro silencer specifically created for automatic and semi-automatic rifles. The Ruger Mini 14 costs about 1,400 Euro including a customized trigger job from the gun smith. I will have to buy a new stock with picatinny rails (400 Euro) and 30 bullet factory mags (60 Euro per mag) from a US supplier.

I have now cleared out all of the information (evidence) from the previous phase and changed my hard drive once again. I am now ready to start the chemical acquirement phase…! 🙂

I was at a party yesterday with a few friends from high school. One of them, Trond, who apparently had evolved into a relatively extreme Marxist, often joining ANTIFA (Blitz) demonstrations… We were both into hip hop back then and he had apparently continued down that road. We had some interesting debates that night while drinking… 🙂 Can you believe the hypocrisy of some people? The guy lives in a Norwegian only area in the middle of a Muslim ghetto at Tøyen in Oslo. I asked him; don’t you consider yourself to be a hypocrite considering the fact that you support mass Muslims immigration and at the same time refuse to actually live with them, and instead barricade yourself in a safe Norwegian area? Needless to say, he didn’t have a good answer… I went on about the fact that there is no such thing as a Palestinian. The concept known as Palestine and Palestinians is a Syrian effort to justify Jihad etc (this is a classic and awesome way to infuriate Marxists :-). We managed to push his buttons over and over again without him realizing that we were using him as a supplier for top notch entertainment :-). God, that was actually quite mean but I honestly think he will re-evaluate his Marxist world view after that night.

I’ve now ordered 50 ml, 99% pure liquid nicotine from a Chinese online supplier. 3-4 drops will be injected in hollow point rifle bullets, which will effectively turn it into a lethal chemical weapon. However, I am quite worried about any potential customs related issue as pure nicotine is considered an illegal substance. In a worst case scenario; a customs official will open the package, get a few drops on his skin and die, and I will have a full SWAT team serving me cock sandwiches at my door the next morning… However, I specifically instructed the Chinese supplier to send the package by courier to my company name, with extra wrapping and chemical labeling.

I have now made my first order for one of the chemicals required for my initiator from an online-based Polish supplier. I will have to order another 4-5 different ingredients online before I am done.

Needless to say; this is an extremely vulnerable phase. In fact, it is the most vulnerable phase of them all. If I get through this phase without trouble I will be very close to finalizing my operation. I am somewhat concerned but I have credible cover stories for each individual chemical (with the exception of one) should there be any complication.

It has been decided that the operation will be effectuated in Autumn, 2011. However, I cannot go into factors concerning why, at this point. My current funds are running low, and I have less than 15,000 Euro left with a 30,000 credit backup from my 10 different credit cards. My primary funds should cover all planned expenses without spending any of the credit.

So what do I do when I’m not working? I’m in the middle of another steroid cycle at the moment, training hard to exceed my 92 kg record from July. I’m currently at 90 kg and hope to reach at least 95 kg. Perhaps ill even reach 100 kg before I end the cycle in 4 week’s time! 🙂 I have a more or less perfect body at the moment and I’m as happy as I have ever been. My morale is at an all time high and I’m generally happy with how things are progressing. I may create an ideological Knights Templar Youtube movie this winter. I have some time to invest while I wait for my chemicals to arrive. My sister in Los Angeles invited me to spend Christmas with her, Kevin and my niece Kaia and nephew Tyler. I’m tempted to visit her for the fourth time but I don’t know if my budget will allow it. My sister supports the fundamental principles of the cause but she couldn’t care less about the struggle and politics in general. They are both career cynicisms and only really care about feeding their own egos. I understand that mentality though as I’ve been there myself. Still, such apathy is the root cause of both US and especially Western Europe’s problems.

I’ve been partying occasionally with my friends; Marius, Axel, Peter and a few others, since I came back from Prague. The cover story I used as justification towards everyone I know was that I was promoting my book.

I am happy to see that Axel is finally coming to his senses regarding his views on the Islamization of Europe. And I expect him to use his vote on the only anti-multiculturalist party during the election in a year’s time.

I am currently watching Dexter, the series about that forensic mass murderer. Quite hilarious. I’m also looking forward to watch the new movie-series about Carlos the Jackal (the Marxist-Islamist and Che wannabe scumbag). Hopefully, it will be as good as the Baader Meinhof Complex. I really enjoyed that one. Oh, and I’m also playing Fallout 3 – New Vegas atm after just finishing Bioshock 2. I’m also going to try the new World of Warcraft – Cataclysm when it is released in December. Time to dust off my image…

As for girlfriends; I do get the occasional lead, or the occasional girl making a move, especially now a day as I’m fit like hell and feel great. But I’m trying to avoid relationships as it would only complicate my plans and it may jeopardize my operation. And I don’t feel comfortable manipulating girls any more into one night stands. I am not that person any more. I did screw two girls in Prague though, but that was mainly because it was a realistic chance that I would end up dead during the process of establishing a weapons connection. I won’t make any effort to try to completely justify it though. Human males are imperfect by default as they are plagued by their biological needs. Nevertheless, screwing around outside of marriage is after all a relatively small sin compared to the huge amounts of grace I am about to generate with my martyrdom operation. And it is essential that you do what is required to keep moral and motivation at a high level; especially, just prior to operation critical moments. I have reserved 2000 Euro from my operations budget which I intend to spend on a high quality model escort girl 1 week prior to execution of the mission. I will probably arrange that just before or after I attend my final martyrs mass in Frogner Church. It will contribute to ease my mind as I imagine I will get tense and very nervous. It is easier to face death if you know you are biologically, mentally and spiritually at ease.

I received the 50 ml of 99% pure liquid nicotine shipment from China today. I’m relieved to see that there were no complications whatsoever.

I thought I’d add a little comment about general expenditure during the pre-operational phases. It is essential to maintain a low budget to conserve your limited budget. The importance of this cannot be stressed enough as having sufficient funds for the operation is everything! Approximately 4 years ago, in 2006, just before I started writing this compendium, I decided to move from my apartment in Frogner, one of the most priciest areas in Oslo, home to my mother. She accepted as she knew I would have to conserve my funds while I was writing the compendium. The cost of renting my old apartment was 1,250 Euro. My current accommodation expenditure (food included) is 450 Euro, a sum I transfer to my mother monthly for renting a room and for food. This wouldn’t have worked in my old life, when I was an egotistical career cynic as it would devastate my social image. However, individuals who choose to become a Justiciar Knight cares little about image (the pursuit to project a desirable façade to impress friends and potential mating partners). Sure, some people will think you are a freak for living with your parents at the age of 31 but this is irrelevant for a Justiciar Knight. The only thing that matters is to ensure that you have enough funds and free time to complete the objectives necessary to execute your individual mission. As for keeping secrecy while living with another person; sure, you need many cover stories and you need access to the loft and/or basement storage areas. As long as you ensure that there is no possibility that the person you are living with will find out what you are really working on, living with others shouldn’t pose a big problem until you initiate your manufacturing phase. My armor is dug down in the wilderness somewhere and I will soon dig down another pelican crate with my weapons, once I get them. I have a large Pelican chest in my room where I have secured items that might raise questions. Besides that, everything is on my PC and individual storage pins which I keep stored safe in the attic (they are 3 very small USB pins which are stored inside walls and properly concealed). They contain the required information for each of the coming phases. As soon as I have completed one phase I extract the information for the next phase from my pin, after I destroy my old hard drive. This has worked flawlessly so far. However, when I will start the actual manufacturing phase in a few months time, I will have no choice but to rent a cottage and/or small farm as I will require total anonymity while manufacturing and storing tons of materials.

I will not be able to update this log for a couple of months as I have to purge my old hard drive and store this information on a chip, externally. When this is done I will initiate the most critical of all phases; the “chemicals acquisition phase”. If I succeed with this phase I will have everything needed except the AN.

December, January and February 2011
When initiating the “chemical acquirement phase”, in end November/early December, I must admit I was filled with some angst. This was after all a critical phase, perhaps the most dangerous of all phases. If I messed this phase up, by being flagged, reported to the authorities etc. I would be neutralized before I could finalize my operation. Even when taking all possible precautions; I estimate it is a 30% chance of being reported to the system protectors at the national intelligence agency during this phase.

My concerns and angst relating to this phase impacted my motivation, to a point where I had to initiate specific counter-measures to reverse the loss of morale and motivation. I decided that the correct approach to reversing it was to initiate another DBOL steroid cycle and intensify my strength training. I also spent some time locating and downloading some new inspirational music. A lot of new vocal trance tracks and some inspirational music by Helene Bøksle. In addition; I decided I would allow myself to play the newly launched expansion: World of Warcraft – Cataclysm. The combination of these three counter measures, in addition to my 3 weekly indoctrination/ meditation walks, resulted in my morale and motivation again peaking.

I would now initiate the most critical of all phases; the “chemical acquirement phase” I will include a list of some of the items/components acquired during this period:

Continuation December log
As already mentioned; I initiated a second steroid test cycle: 3 first weeks on DBOL tabs (40 mg per day). Weight increased from 86 kg to 90 kg. No side effects. Cycle cancelled after three weeks because I felt I had to prioritize other tasks.

Pistol training November, December and January
Pistol training was initiated in order to fulfill the government requirement for purchase. 15 training sessions in November, December and January was completed and documented. The application for a Glock 17 was sent in mid January. Documentation and activity requirement was met. I joined my local pistol club back in 2005 for the first time but have only sporadically attended training until November 2010. The fact that I joined the club as early as 2005 was a planned move to increase my chances for obtaining a Glock, legally.

Rifle training December and January
3 rifle training sessions was completed during this period. The intention was to acquire a minimum of experience with, Gungnir, my semi automatic Ruger Mini 14, .223 caliber and to calibrate my Eotech sights properly at 100 meter distance.

December and January –
Rifle/gun accessories purchased –
10 x 30 round magazines –
.223 cal at 34 USD per mag. Had to buy through a smaller US supplier (who again ordered from other suppliers) as most suppliers have export limitations. An alternative supplier was located in Sweden but it would have cost 1.5 times more. Another possibility would have been to use Jetcarrier (or similar freight forwarder which allows you to order from a US address) but some companies have no- sale policies to New Jersey for this reason. Total cost: 550 USD

From Midway
– GG&G Picatinny Style Scope Base Ruger Mini-14, Ranch only: 95 Euro

– Aimshot Laser Sight and Flashlight Tri-Rail Barrel Mount: 30 Euro (3x picatinny/weaver rail)

– Allen Buttstock Shotshell Ammunition Carrier, 5 round Nylon (mounted on shotgun): 10 euro

– Loctite Blue Aluminum Threadlocker, cost 10 USD on Ebay, excellent for tightening screws on the alu rails used for fastening the holographic sight and 3 x sight.

From other suppliers
– LaserLyte Pistol Bayonet Quick Detachable – a picatinny/weaver rail bayonet purchased from Ebay using VISA/Paypal, cost: 62 USD.

– 4 x 30 round magazines for Glock 9mm from a national supplier, Capsicum Solutions, using VISA, cost: 230 Euro.

– Cammenga Easyloader for AR15/Mini14 from a national supplier, Capsicum solutions, cost: 70 Euro

– Hollow point ammo for .223 from a national supplier, 500 Euro. Had to research and use a cover when buying; bird hunting ftw.

– Slugs ammo for shotgun, 100 Euro, cover when buying; deer hunting ammo.

Equipment needed for creating chemical/biological ammo-

DREMEL Universal tool 200 series (the drill) –

DREMEL Workstation (used for stabilizing the drill in a stable 90 degree position) –

DREMEL Multichuck (allows you to use conventional drill bits on your dremel tool)
Total cost for these three items: 140 Euro from Pixmania.com

– 65mm Drill Press Vice (Quick Release) from Lathe Mill, ordered from Ebay via Paypal, cost: 33 USD (Anchortools.com). This item will hold the cartridge in place while I drill a portion of the lead core out of the bullet.

Note; I have concluded that .223 ammo is not suitable for creating bio rounds. The bullet simply lacks the size required to fit a deadly doze. 7.62 ammo would be preferable as it is more than double the size. 9 mm bullets are ok for this purpose, but I have to wait for my Glock license before I get access to 9 mm ammunition.

Other items bought from Clas Ohlson, general store:

– Manual filing set – Super glue, used for plugging the bullet after injection – De-isolation thong that lets you cut of the tip of bullets (looks like a wirecutter)

Other items ordered:

Marketing related
Casio EXZ 330 SR digital camera, for marketing purposes, from Expert, cost: 80 Euro. This would allow me to complete a photo session, without the need to use a professional photographer. I have used a professional in the past but it is obvious that the regalia I intend to use in the photo session will generate suspicion and threaten the security of the operation. Lack of professional digital equipment, green sheet background and other related and expensive photo gear can be compensated by my Photoshop skills.

Operational gear, components and accessories

– Latex tubing/surgical tubing 10” 1?4 1/32 wall latex tubing from Ebay 50 USD, used as the outer layer on a fuse to prevent early detonation.

– Ruger Mini 14 from national supplier, cost: 1100 Euro

– Trigger job on Ruger Mini 14, 100 Euro (bought in October I believe), to make the trigger lighter to press for rapid fire,

– Training ammo: 200 Euro – Barley Crusher MaltMill with 7 kg hopper, from barleycrusher.com, cost 250 USD incl shipping.

Received the Barley Crusher in January. I haven’t yet tested if it works but according to my calculation it should enable me pulverize fertilizer prills at record speed. When you attach a drill using a 3/8 drill motor at 500 RPM it should give you a crush rate of 3 kg per minute making the pulverization process of 2 tons of fertilizer fast and easy. The crusher rollers are adjustable at both ends so they can be adjusted according to prill size to ensure proper pulverization.

Fitness/muscle supplements

– 100% Whey Protein 9kg, cost: 250 Euro, for increasing muscle mass, 100 g per day in combination with training, top ranked protein supplement, short protein

– 100% Casein Protein 2 kg, cost: 70 Euro, for increasing muscle mass, 25 g per day before you go to bed in combination with training, top ranked protein supplement, long protein

– No-Xplode, cost: 50 Euro, pre-workout energy booster, this should also be used 10 min prior to mission

– Milk Thistle Herbal Supplement , 3 boxes, cost: 45 USD, Ebay, needed to strengthen the liver when using steroid tabs (Winstrol/DBOL). As steroid tabs are toxic for your liver you should use this liver supplement (3 tabs per day during a steroid cycle).

Logistic failures
I ordered an ASE Utra CQB-QM silencer (cost was 800 Euro) for my semi automatic rifle in September 2010 and the supplier, Intersport Bogstadveien, told me it would arrive in early January 2011. In January, the supplier told me ASE had suddenly cancelled all private orders due to the fact that they had just received a large military order… I’m not going to take the chance with a regular non-auto silencer because it might overheat and explode during rapid fire, with the risk of destroying Gungnir. I was not able to find another supplier of semi automatic silencers that could be sent to my country directly from the supplier or by jetcarrier. The only bonus I guess is that by eliminating the silencer aspect allows me to order and equip a bayonet instead. So I guess; “Marxist on a stick” will soon become an exclusive Knights Templar Europe trademark :D.

February
Initiated third steroid test cycle: 3 first weeks on winstrol tabs (40 mg per day) followed by 3 weeks of DBOL tabs (40 mg per day). Weight increased from 86 kg to 93 kg. No side effects. Cycle completed with great success. I have never in my life been more physically fit than I am today. Strength increased by 30-50% which will prove useful.

Creation of marketing movie trailer
Feb 15th to Feb 26th: created a 12.5 minute movie trailer (slideshow trailer) promoting the compendium: “2083 – A European Declaration of Independence”. All the slides were created in Photoshop. After 12 days of hard work I can say I am somewhat satisfied with the end result. I would love to make it even better but I really can’t afford to invest any more time into this trailer which might never see the light of day… Not happy with end resolution but higher res would just make the AVI file too large for efficient distribution. Was planning to hire a low cost Asian movie guy through scriptlance.com but I have to conserve my funds.

Other social related matters
After 5 years in the Freemasons I was finally accepted for rank 4-5 (it’s a combined rank). However, due to lack of time I decided to decline the offer. I told them I would be unavailable until Autumn 2011, due to extensive traveling.

Purchase of containers – primary, secondary and tertiary

To calculate the required size for cylinders (for primary, secondary, tertiary charge housings)

Google for an online Density Mass & Volume Calculator, like the following:
http://www.1728.com/density.htm

Mass: 12 gram (DDNP detonator content) You now need to find the volume and density Density: example density of water is 915 kg/m3 so density of the primer is approximately 700 Now, with the density and mass (700, 12) you can now calculate the volume

To calculate cylinder volume:
http://www.online-calculators.co.uk/volumetric/cylindervolume.php

With these calculations you now know the size of cylinder required for 12 gram primary, 500g secondary and 50 kg tertiary charge.

Cylinder housings purchased
Primary container (small, fits 12-20 grams) I bought the primary containers (detonator housing) from a general supply store. It was actually a long alu pipe which I intend to cut into three detonator housings. I also bought screws so that I may create lockable “ends” by using appropriate sized coins (placing two screws above and two below the coin. I was uncertain whether to select alu, copper or steel for the primary container but eventually decided to go with alu. Cost: 50 Euro Size: 10 x 1,6 cm (12g)

Secondary container (medium, fits 500-800 grams) I bought the secondary container (x 3) from IKEA, a metal toilet brush housing, the most expensive and robust alternative they had. I had reviewed various suppliers prior to concluding this transaction. Cost: 80 Euro. Size: 30 x 7 cm (692g), alternatively: 30 x 6,5 cm (597g)

Tertiary container (large, fits 50-60 kg) Ordered 3 x 61L barrels with a removable end cap(tertiary container) from a national supplier (Greif). Due to a minimum quantity policy I was allowed to leech on a main order placed by another company. After 3 weeks the order was ready for pickup. Cost: 90 Euro Size: 60 x 30 cm (52,8kg), alternatively: 75 x 45 (71,57 kg)

Fertilizer PP woven bags purchased
I was unable to find a supplier of this product in my country. I therefore ordered 60 units of large plastic bags able to contain 50 kg content (woven polypropylene, waterproof and robust fertilizer type bags, excellent for storage and transportation of chems). Chinese supplier found through Alibaba.com, cost: 50 USD for bags + 290 USD for EMS shipping courier. Paid by Western Union.

Cover story; I contacted 30 companies, a majority of them located in China and explained that I was planning to order 200 000 units per year with intent for distribution in Scandinavia. In this context I wanted to order 60 units for testing.

I don’t like lying, but I know from experience that you need a story like this if you want to prevent being ignored. These companies usually just ignore small purchases/inquiries.

I received the 60 units shortly after and they are optimal for their intended use.

Social life and continuation of cover
My best friends; Peter, 31, Marius, 31, Axel, 32, and Martin, 32, are now all in the process of settling down. Peter’s girlfriend Pia has a daughter, Mina, from another relationship. They are about to buy an apartment together. He’s currently in the process of selling his apartment close to Bogstadveien (not far from where I used to live), probably the best and most exclusive place to live as a bachelor in Oslo. Peter works as a co-captain on a supply ship outside the coast of southern US. He works 4 weeks on, and then has 4 weeks off etc. Although he and his parents fled from Soviet Hungary, they are unwilling to condemn the current cultural Marxist regime in Norway, possibly because they feel gratitude to the regime for welcoming them in the past. Peter loves to discuss politics but he’s not willing to take a clear stand on multiculturalism, possibly because he fears a future regime change, in our favor, may jeopardize his legal status. I have tried to convince him that it will not affect Christian Europeans, but he remains somewhat unconvinced. Regardless, he’s my closest friend and has been since I was 19. I have influenced him considerably the last few years, and vice versa, but I don’t consider him to be a fellow nationalist, as he doesn’t really care about anyone except the interests of himself, his family and his friends. This code, or rather lack of code, applies to the large majority of people though, so I don’t hold it against him.

Marius lives only 5 minutes away from my home. He’s been dating a very cute and nice girl named Christine for a couple of years now. She wants to settle down but he’s trying to delay it for as long as possible. He works as a fireman, quite ironic as I will soon ensure he gets his hands full… He has helped me out with my training regime as he is a die-hard fitness/bodybuilding person who has kept a very strict diet for several years. He’s a good friend (we’ve been “on-off” best friends since we were 11 years old – 21 years now)) and I often drop by his house. I guess Marius is the least ambitious of our group as he has traditionally focused all his energy on optimizing his physical and social image in relation to fitness for the purpose of hooking up with as many new girls as humanly possible, often at the same time. I think he has been with close to 1K atm including a Swedish midget :D. When it comes to partying, he’s a demi-god and I guess I can call him a master at what he does. His whole lifestyle revolves around having an optimal bad boy Playboy’ish image which includes multiple tattoos, perfectly toned muscles and endless partying etc. That lifestyle appeals’ to a lot of guys but few get to live it so fully. From my own experience, such a lifestyle does get very repetitive after a while though and you eventually just feel lonely and empty inside as everyone except yourself settles down. Regardless, he’s a great standup guy, and very fun to be around. Just ensure that you keep him at a miles distance away from your girlfriend when he’s drunk and it’s no problem at all :))

Axel works as a contract lawyer in the Norwegian Defense Department, quite ironically, with the acquisition of military equipment on behalf of the military forces pledged to defend the multiculturalist Kingdom of Norway. He’s currently the most career oriented of my friends. He and his girlfriend Synne has just purchased a new 650 000 Euro apartment. Everyone expects her to get pregnant soon as she is 35, he being 32. Axel is a really standup guy and is considerably more interested in high culture and discussing politics in general. Despite of the fact that he knows everything about the current Islamisation process and the indirect genocide of Europeans, he still says he supports “Venstre” (a multiculturalist party known for harsh demonization and vilification of cultural conservatives) but I now suspect he’s just saying that to tease me :))

Martin works for one of the more prestigious real estate brokers/developers in Oslo, Selvaag, and has just moved to Drammen with his girlfriend where they bought a house together, not long ago. She’s only 22 but has a son from another relationship. I haven’t seen Martin much the last few years as he has focused most of his energy on career advancement and his girlfriend.

Me, Peter, Marius and Axel (and a few other common friends) have seen a lot more of each other the last few months as I’ve had the opportunity to take some time off from the project. Traditionally, I have been the “glue/social administrator” of the gang, but in my absence, Peter has stepped up and has taken initiatives the last years. I still enjoy considerable respect and admiration from them in relation to my past achievements (establishing my company with 7 employees and making my first million at 24 and 4 million at 25-26). I believe, less than 5 self made individuals have accomplished more at that young age in my country. However, they just can’t comprehend why I halted my career at that point, which is understandable. It’s not like I can tell them that the only reason I generated those funds in the first place was to fund my current operation…

They, along with my sister Elisabeth, are constantly bugging me about getting a girlfriend as I’m the only one who is still single. I told them I will be dating again from August 2011, as I told them I will be moving to my own place then. I guess it’s the easiest way to avoid the social pressure. I also told them that I’m in the end phase of completing the research phase of 4 different business plans, one of which, I said, I will initiate from August. I’ve told them that one plan involves farming, one involves the design, creation and distribution of body armour with intent to become a supplier for the Norwegian Defense Department, one involves distribution of survival, gun accessories and other security related gear and I have also made hints about the mining project. Controlled distribution of information regarding these projects will potentially help me in the future, should one of them ever manage to stumble across sensitive information. Up until now, there has been absolutely no suspicion from them whatsoever as far as I can tell. I also told them that I’m in the end phase of my book project, which will be concluded by a final publishing tour visiting cultural conservative organizations in Western Europe followed by email distribution to 10 000 cultural conservatives around the European world.

I’ve also scheduled to meet my stepmom, Tove Øvermo, in March. She used to work as a director in Norwegian UDI (the foremost government organization tasked with approving applications and granting foreigners (mostly Muslims) legal permits). Ironically, UDI is a highly valued target for Knights Templar in Norway as it is an essential tool and facilitator for the Norwegian multiculturalist regime. However, I think she’s retired now, so she is currently not in danger of any KT attacks. Although I care for her a great deal, I wouldn’t hold it against the KT if she was executed during an attack against UDI, as she used to be a primary tool and category B traitor for the multiculturalist regime of Norway, high treason she should be familiar with. Tove, being very intelligent and committed in the advancement of her own career under the multiculturalist regime, is fully aware that she is a willing and participating subject/tool for the Multiculturalist Alliance in the indirect genocide of Norwegians through the continued Islamisation of Norway. People in her position are just unwilling to make any meaningful sacrifices as her career would be immediately terminated by the regime if she criticized them. Career termination followed by blacklisting and harsh vilification and character assassination is not a price most people of her position are willing to pay. Just like essential NS tools were guilty of facilitating the NSDAP, people in her position are guilty of facilitating the Multiculturalist Alliance. Regime sub-leaders such as her are on auto pilot though, and partly disconnected from reality and thus partly unaware of their own war crimes, since the multiculturalist media is ensuring that the public remain disconnected from reality and the truth. So when I meet her I will probably just end up talking about the usual social BS, to prevent raising any red flags. During our last meeting, I remember we discussed the central aspects of Wahhabism, and I was really impressed with her knowledge on the matter.

I have been storing three bottles of Château Kirwan 1979 (French red wine) which I purchased at an auction 10 years ago with the intention of enjoying them at a very special occasion. Considering the fact that my martyrdom operation draws ever closer I decided to bring one to enjoy with my extended family at our annual Christmas party in December. I brought the other flask to Marius` party a few days later and shared it with my friends. It was an absolutely exquisite experience that will not be forgotten. My thought was to save the last flask for my last martyrdom celebration and enjoy it with the two high class model whores I intend to rent prior to the mission. My interpretation of being a “Perfect Knight” does not and should not include celibacy, although some of my KT peers might disagree with me on this point. I believe that in order to strengthen the resolve, morale and motivation prior to a martyrdom operation, the Justiciar Knight should be encouraged to embrace and take advantage of a significant reward system designed to increase focus and remove any last doubts. A pragmatic approach, which involves acknowledging the primal aspects of man for the purpose of preparing him for a martyrdom operation, should always take precedence over misguided piety, which only increases the chance of jeopardizing the execution of the operation. And I believe the majority of war strategy analysts will agree with me on this.

Continued philosophizing about the future cultural conservative political model, when we, the cultural conservatives, again seize political and military power at one point between 2025-2083

I have been thinking about my post-operational situation, in case I survive a successful mission and live to stand a multiculturalist trial. When I wake up at the hospital, after surviving the gunshot wounds inflicted on me, I realize at least for me personally, I will be waking up to a world of shit, a living nightmare. Not only will all my friends and family detest me and call me a monster; the united global multiculturalist media will have their hands full figuring out multiple ways to character assassinate, vilify and demonize. They will possibly do everything they can to distort the truth about me, KT and our true objectives, and attempt to make even revolutionary conservatives detest me. They will label me as a racist, fascist, Nazi-monster as they usually do with everyone who opposes multiculturalism/cultural Marxism. However, since I manifest their worst nightmare (systematical and organized executions of multiculturalist traitors), they will probably just give me the full propaganda rape package and propagate the following accusations: pedophile, engaged in incest activities, homosexual, psycho, ADHD, thief, non-educated, inbred, maniac, insane, monster etc. I will be labeled as the biggest (Nazi-)monster ever witnessed since WW2.

I have an extremely strong psyche (stronger than anyone I have ever known) but I am seriously contemplating that it is perhaps biologically impossible to survive the mental, perhaps coupled with physical torture, I will be facing without completely breaking down on a psychological level. I guess I will have to wait and find out.

Regardless of the above cultural Marxist propaganda; I will always know that I am perhaps the biggest champion of cultural conservatism, Europe has ever witnessed since 1950. I am one of many destroyers of cultural Marxism and as such; a hero of Europe, a savior of our people and of European Christendom – by default. A perfect example which should be copied, applauded and celebrated. The Perfect Knight I have always strived to be. A Justiciar Knight is a destroyer of multiculturalism, and as such; a destroyer of evil and a bringer of light. I will know that I did everything I could to stop and reverse the European cultural and demographical genocide and end and reverse the Islamization of Europe.

I guess it is tempting for the many who have endured years of vilification, to just start believing the propaganda and embrace NS fully. However, I remain a staunch anti-Nazi and I blame NSDAP for the situation we are in. Hadn’t it been for the actions of the cultural right wing extremists known as the NSDAP our Western European countries would not be dominated by the cultural Marxist extremist regimes we witness today. If the NSDAP had been isolationistic instead of imperialistic(expansionist) and just deported the Jews (to a liberated and Muslim free Zion) instead of massacring them, the anti-European hate ideology known as multiculturalism would have never been institutionalized in Western Europe, because the Marxists would never have been so radicalized to begin with. The cultural conservatives would have been in a very strong and dominant situation today. Western European countries would have had cultural conservative doctrines similar to what we see in Japan and South Korea.

We must keep this lesson in mind. When we seize political and military power in the future; while tempting to unleash hell to avenge all our ravaged and dead brothers and sisters, we must keep in mind that replacing a cultural Marxist extremist regime with a cultural conservative extremist regime will only fail to break the cycle where history always repeats itself. So instead of replacing this tyrannical and extremist multiculturalist regime with an equivalent right wing one, we must think and act pragmatically with a long term objective. We must manage to break the historical “Marxist vs. Conservative” cycle or we risk that the cultural Marxists will emerge as a dominating force again after 20-100 years. As such, we should limit the executions of category A and B traitors to 200 000 in Western Europe. A better alternative than execution of the remaining, the category C traitors, would be to establish a large multiculturalist zone in southern/eastern Europe, perhaps Anatolia, or on other territories which has been invaded and occupied by Muslims. In these newly created zones; the cultural Marxists category C traitors and those of the non-Europeans considered as politically disloyal will be deported to and allowed to live and create their imaginary utopia. A cultural Marxist or a so called “internationalist” does not feel much love for his ancestral country as he believes we are all citizens in a global community. So they should recover easily from the process of being deported to another country.

Norwegian Intelligence Agency (PST) annual estimates – 2011
Feb 28th: The Norwegian Intelligence Agency (PST) just released its annual report on terror estimates in Norway. I have been waiting for this report for several weeks now. Apparently, it’s the same expectations as usual when it comes to Islamic terror; imminent danger. However, they then specify that the largest right wing threat in Norway is that a subsidiary of English Defense League (EDL); Norwegian Defense League (NDL) is in the process of gaining strength. They also state, between the lines, that both EDL and the NDL are dangerous and violent right wing extremists that adhere to racism, fascism and Nazism.

They conclude that they will ensure that any attempt to further develop NDL in Norway will be harshly suppressed.

I am not surprised that PST makes statements like this as the report has been designed by the Norwegian Labour Party, and does not reflect the views of actual PST operatives. The head of PST, Janne Kristiansen has never even worked as an intelligence officer, and is nothing more than a planted Labour Party agent, placed to lead the PST, against the will of most PST employees.

I know that the above description is nothing more than vile lies, a part of their psychological propaganda warfare against all cultural conservatives. I know this for a fact as I used to have more than 600 EDL members as Facebook friends and have spoken with tens of EDL members and leaders. In fact; I was one of the individuals who supplied them with processed ideological material (including rhetorical strategies) in the very beginning. The EDL are in fact anti-racist, anti-fascist and anti-Nazi. They even have many members and leaders with non-European background (African and Asian). They have worked so hard, and continue to work hard, to keep National Socialists out of the organization, but yet they are strategically labeled as racist-fascist-Nazi-monsters by the multiculturalist authorities. The EDL, although having noble intentions are in fact dangerously naïve. EDL and KT principles can never be reconciled as we are miles apart ideologically AND organizationally. The EDL even rejects taking a stand against multiculturalism which proves that they are even more naïve than Sarkozy, Merkel and Cameron who have all admitted that multiculturalism has been a failure and a disaster for Europe.

KT was formed back in 2002 as a revolutionary conservative movement because we had lost hope that the democratic framework can solve Europe’s current problems. The EDL, on the other hand, IS a democratic movement. They STILL believe that the democratic system can solve Britain’s problems… This is why the EDL harshly condemns any and all revolutionary conservative movements that employ terror as a tool, such as the KT. And this is why, we, the KT view the EDL as naïve fools, wasting all their energy monkey- screaming to deaf ears while they should instead have focused on means and methods that are meaningful in regards to achieving true political change, in regards to tearing down the multiculturalist regime known as Britain. Unfortunately, the only meaningful resistance at this point in time is to use military force. So instead of monkey-screaming, they should instead focus on strategically demolishing one of the many British nuclear power plants, which effectively would completely cripple the British economy, contributing to creating an optimal climate for significant political change.

Regardless; it is so obvious that the Multiculturalist Alliance feels it is important to label anyone who criticizes multiculturalism as racist, fascist, Nazi-monsters. It makes their job easier, as they can justify harsh suppression methods of all cultural conservatives. The truth of the matter is that the Multiculturalist Alliance and their tools are about to lose this propaganda war. The peoples of Western Europe are not stupid, and they know that less than half of the targets of character assassination are not what is claimed. I’m optimistic about the fact that the MA appears to have managed to paint themselves into a corner, and their false and desperate propaganda outbursts appears, for an increasing number of Europeans, to be stuck on auto pilot (similar to what was witnessed in the Soviet Union in the 70s and 80s). People are in the process of learning the truth about what is going on and the continued desperate propaganda outbursts only makes our job easier. It is not the cultural conservatives of Europe that are the monsters. It is in fact the Multiculturalist Alliance that are the true racist, fascist, Nazi-monsters. It is possible to avoid reality for up to several decades. The Soviet Union is proof of this. But eventually, the truth will be known as you cannot avoid the consequences of avoiding reality.

It is no longer a question IF the MA will crumble but WHEN the MA will crumble. They will lose when the Western European economy shatters, in combination with further Islamic colonization. And when this happens; the majority of the 340 000+ nationalist militants in Western Europe must be ready to strike hard and without mercy with the objective of seizing political and military power. We still have 14 years (2025) to arm ourselves, so let us continue to prepare for the coming coup d’état. Guns and ammo alone is not enough, you will need quality body armor, com/radio devices, rations and certain survival accessories as well. Chop-chop<3 For those of you who does not want to wait this long, should immediately ordinate yourself as a Justiciar Knight for the KT. Economic status (as of March 1st)
I decided to sell my dear Breitling Crosswind and my Montblanc Meisterstück pen in January in order to strengthen my operational budget. I was able to sell my Crosswind for 1800 Euro and my pen for 200 Euro.

My remaining budget is now:
In bank: 3750 Euro In cash: 3750 Euro Value of car: 4500 Euro Credit (9 credit cards): 28 750 Euro

Logistical plans ahead (as of March 1st)
I will shortly convert the public listing/definition of my company from regular to agricultural. This will allow me to acquire (rent) and register a farm with accompanying fields. The fields, registered through my company, will give me a specific “farming ID number” which is a requirement for ordering large amounts of fertilizer from the national supplier.

The cover I am using is; test production of sugar beet. I have created a 10 page “business plan” for this purpose, and have familiarized myself with the related terminology. As such, I am soon ready to place “rent adds” in agricultural newspapers, with intent to rent the farm/fields.

As soon as I rent the farm; I plan to move all my equipment to the farm house and initiate the “explosive manufacturing phase”. The operation will be executed shortly after the manufacturing phase is completed. Will attempt to initiate contact with cell 8b and 8c in late March.

Remaining items/components to buy:

• Plastic sheeting: 30 Euro

• Alu/wood ramp for loading/unloading truck: 30 Euro

• Fertilizer – large 500 kg bag: 1 x CAN, 1 x N34, 1 x 0-5-17 (for show), repeat after a couple of weeks: 2000 Euro

• Sementmixer – rent or buy: 100 Euro

• Ethanol 96%, x 6L: 30 Euro

• Blue Police – flashing LED light – for one of the trucks: 150 Euro

• Face – splash proof face mask: 30 Euro

• Fork jack – for 600 kg sacks: 200 Euro

• Plastic base for 600 kg sacks (used with above): 200 Euro

• Refrigerator: 100 Euro)

• Freezer: 100 Euro)

• Fume hood: 1,000 Euro, not yet decided

• Microballoons, 20 kg

• Glock 17: 700 Euro

• More ammo: 1,000 Euro

• Dunnage air-bag for transport load securing (centerload.com), bought from Ebay: 100 Euro

• Straps/net for securing large load in truck, may use alu/metal profiles with screws to support

Manufacturing of Picric Acid/DDNP
Foreword – why the manufacturing of picric acid as a secondary/booster and DDNP as a primary is the most rational approach:

As of 2011; the most popular primary explosive seems to be AP also referred to as Satan’s Mother. AP, although quite easy to manufacture, is an EXTREMELY dangerous substance which is likely to cause you great injury or even death. In the guides I have read about DDNP it is stated that this primary is very often disregarded since it is so difficult to make. This is deliberate misinformation as it is simply incorrect (If a chemistry amateur like myself can make Picric Acid AND DDNP on the first try then ANYONE can make it!!!). After merging 4 DDNP guides, I – who has no chemistry experience whatsoever, managed to synthesize DDNP on the first try. I tested the batch, and I confirmed the result myself. I even managed to create the first batch of DDNP with relatively impure picric acid. DDNP is more than 10 times as stable as AP and has more or less equal VOD (velocity of detonation). I even think that synthesizing DDNP was easier than manufacturing picric acid (which is considered to be perhaps the easiest secondary/booster to manufacture). In other words, the only reason you would not want to create DDNP as a primary is because you for some reason can’t get access to the materials required. So let’s review these materials and some of the equipment needed;

The following should be easy to acquire unless you’re called Abdullah Rashid Muhammad…:

Generic lab glassware
(EASILY OBTAINABLE): beakers, conical flasks, glass temperature rods etc.

Fume hood and fan
(EASILY OBTAINABLE): fume hood can easily be purchased or created using improvisation by using PVC plastic plates, screws, duct tape etc. You can use a 100 euro dust blower as a fan (I did and it worked perfectly).

Sulfuric acid
(EASILY OBTAINABLE): PA and DDNP – if you are having trouble buying this in bulk containers then simply buy 15 car batteries (new or used) which should contain approximately 2L of 28-37% sulfuric acid each. Just drill a hole in it (using protective gear) and pour it in a larger container. If you don’t need 1,5kg of PA booster and just want to create DDNP primary the required amount of sulfuric acid is less than 3L (which is boiled down to 1L of 90%+)!

Acetylsalicylic acid
(EASILY OBTAINABLE): PA – just buy aspirin at any drugstore. There are several brands of Acetylsalicylic acid (aspirin equivalents).

Sodium Nitrate
(MODERATELY OBTAINABLE): PA – you can order this at any drugstore as it is an essential substance for tanning/preserving meat. Hunters that needs to process hundreds of kilograms of meat before freezing it needs Sodium Nitrate (1 teaspoon for every 25kg of meat to prevent the growth of bacteria). You can also synthesize sodium nitrate quite easily (as long as you do it outdoors) by using ammonium nitrate (you get this from ice packs) and caustic soda (or was it acetone) if I remember correctly.

Sodium Nitrite
(MODERATELY OBTAINABLE): DDNP – you can order this at many drugstores as it is an essential substance for tanning/preserving meat. Hunters that needs to process hundreds of kilograms of meat before freezing it needs Sodium Nitrate (1 teaspoon for every 25kg of meat to prevent the growth of bacteria).

Sulfur powder
(EASILY OBTAINABLE): DDNP – you can easily acquire this from aquarium filters or by ordering online. It is an essential ingredient in Wiccan culture/religion so they can’t ban it for religious reasons.

Caustic Soda – powdered
(EASILY OBTAINABLE): DDNP – you can easily buy this over the desk in all countries.

Acetone – liquid
(EASILY OBTAINABLE): DDNP – you can easily buy this over the desk in all countries.

Ethanol (95%)
(EASILY OBTAINABLE): PA – you can easily buy this over the desk in all countries. Just buy concentrated sprinkler fluid (blue) used to clean windshields on cars. There are many names for the appropriate compound: isopropanol and butanol are other names. Go for ethanol or isopropanol if possible. I’m not sure about bio-ethanol sold at gas stations (from pumps) but that may work as well.

Detonator
(EASILY OBTAINABLE): there is no reason to make this more complicated than it has to be… by using mobile phone detonators etc. As DDNP is easily detonated by fuse; just order a few meters of regular visco fuse in December during the fireworks season. There are thousands of pyrotechnic enthusiasts doing this all over Europe and most of the shipments get through with little consequence if detected. Just order from a couple of suppliers so that you will get at least one of the shipments. You can also create your own fuses, in which case; just visit online pyrotechnic forums (every country has at least one) for instructions. When creating the detonator skeleton cylinder you can also add a couple of grams of gunpowder (the flaked gunpowder used in shotgun shells are good) layered above the DDNP in the detonator. For most fuses; 1 cm equals 1 second, so if you want 2 minutes delay just use 120 cm of fuse. Visco fuses are excellent for this purpose but there are even better ones at some sites.

General pyrowares:
much of the above can also be ordered online from pyro-chem sites. The best are located in Eastern Europe since regulations are less tight.

Conclusion:
there is absolutely NO GOOD REASON why anyone (unless flagged by the intelligence agency) shouldn’t be able to acquire the above materials and gear WITHOUT detection. The only thing that is holding you back is unfounded fear or laziness! Your fear for detection cannot be justified, unless you have an Islamic name <3 Ingredients needed for 1,5kg of Picric Acid secondary/booster

1. 10 liters of 90%+ sulfuric acid (requires 2 days of labour, cost: approx 200 euro)

2. 1.6 kg of Acetylsalicylic acid (requires 4 days + 2 days of labour, cost: approx 1500 euro)

3. 3 kg of Sodium Nitrate (pre-ordered at apothecary, 1 week delivery time, cost: approx 500 euro). This can also be synthesized relatively easily if you are having trouble buying it.

4. 80 liters of distilled water/distilled ice cubes (cost: approx 440 euro)

1.
10 liters of 90%+ sulfuric acid

Estimated time required: 1-3 days to purchase the product (28-37%) and it requires 2-3 days of labor to concentrate it to 90%+.

Boiling down 35 liters of un-concentrated sulfuric acid (28-37%) to 10 liters of 90%+ concentration

In order to concentrate sulfuric Acid bought from stores (containing 28-37%) you will have to boil down the liquid. In order to get 10 liters of 90%+ sulfuric acid you need approximately 30 liters containing 28-37%.

I bought a container of 25 liters (28%) from one supplier (supplies car shops etc) and I bought 5 bottles from 3 other retailers each containing 1 liter. I also bought 4 car batteries in case I needed more.

I was uncertain how I should approach the “boiling down process” at first. The guides I had reviewed suggested you use specialty hot-temperature porcelain plates, use of specialty lab beakers, use of cooking stones to prevent sprouting and to use all necessary protection gear. As such; I assumed you needed specialty cooking plates that could reach very high temperatures and that I would need boiling stones and specialty laboratory glassware that could sustain extreme temperatures. Needless to say; the guide was wrong on all accounts! You don’t need any of this to concentrate sulfuric acid! Not hot-temperature porcelain plates (any plates will do), not specialty lab beakers (any regular Duran lab beakers will do) and not boiling stones (I tried with boiling stones and it made it harder).

I initially bought 3 induction plates (flat porcelain) but they didn’t function as my 2L beakers didn’t cover the minimum diameter required for the induction plates to function. I used standard inexpensive lab beakers made from Duran glass btw. I also broke two other beakers made from Duran glass (crushed them to small pieces with a hammer under a towel) in order to use it as boiling stones (to prevent the liquid from sprouting).

As the induction plates didn’t work for me I purchased 2 regular single cooking plates; the more expensive ones with iron plates retailing for 140 euro a piece. I had a very cheap single plate from before. Using the boiling stones was a failure for me so I reduced the amount of stones until I decided to remove them all and try without. I was also unsure how to store the concentrated sulfuric acid once I was done boiling. Some sources said glass was required while other said you needed specialty plastic. This was incorrect, as I stored my 90-95% acid in regular plastic bottles, in both 1 liter bottles (the bottles which were intended for 28% sulfuric acid) and 4 liter bottles (bottles produced for distilled water). I encountered absolutely no problems doing this whatsoever ( I had them in these bottles for up to 6 weeks).

Boiling procedure
I did the boiling outside using a 10 meter electrical extension cord and I placed the cooking plate on a wooden TV rack I had carried outside. I wore a lab coat with apron with standard nitril washing-up gloves and a 3M half mask with 3M acid filter (nr. 60923 – multifilter). Skipping the stones made wonders and it quickly started boiling (set it on the highest temperature from the start). After 1,5 hours of boiling (concentration at about 70-80%) the more or less unnoticeable water damp developed into thick smoke (NOx gas). After around 2 hours of boiling the smoke was so thick I got really worried that my neighbors would notice it so I quickly cut the power. Even after turning it of it generated insane amounts of white smoke (NOx gas) for 20 more minutes. I then decided I had to do the rest during nighttime, not to attract any attention.

That night, I started the next boiling session with 3 boiling plates at around 21:30 since it got dark at 23:00 when the heavy smoke would begin to generate. I started with 1.8L of un-concentrated sulfuric acid in each of my 2 x 2L beakers and 600ml in my 1 x 1L beaker which was used on my “weaker” plate. I worked from 21:30 to 07:00 in the morning for three consecutive days before I finally was done. End note: I tried to extend the working day past 07:00 on day two which almost ended in disaster. At around 09:00 AM, I was about to put on my hazmat suit and 3M gas mask to start another boiling session when I noticed the neighbor just outside the house entrance. Had I not noticed this in time I would have to explain to him why I was wearing the protective gear, and that wouldn’t end well… So if possible, even when on an isolated farm; do the boiling between 23:00-07:00 if possible. No use taking unnecessary risks. I spent 5-6 days on this process considering the fact that I had to combat false information, misconceptions and work out efficient procedures . If I had access to this guide before I started I would have been able to shorten down this process to 2 days.

Additional boiling tips:

a. Consider buying 5 or even 6 single cooking plates to reduce the boiling time drastically. Cutting the boiling time in two will drastically reduce your vulnerability to detection considering the fact that you are forced to work outdoors.

b. You will quickly learn your “progress” (purity level of sulfuric acid) by evaluating the thickness of the smoke and how many ML has been boiled away. If you start at 1.8L of 28% purity just boil it until it reaches 550ml or so to be sure you have 90%+.

c. Unless you are using identical cooking plates you will want to adjust the amount of ML per cooking plate so that you have maximum uptime and so that the concentration reaches 90% on all plates at the exact same time. You will learn this after the first session.

d. Let the acid stand for 30-40 minutes after you cut power to the plates by unplugging the electrical cord extender.

e. You can store 90-95% sulfuric acid in plastic bottles.

f. Concentrated sulfuric acid does not fume or evaporate.

g. You don’t need to go overboard with protection. It will take 10-20 seconds for 90%+ sulfuric acid to burn through regular nitril gloves (medium thickness washing-up-gloves) and several seconds for it to burn through clothing. Just be rested and careful and you’ll be fine. I got several drops on my gloves on several occasions and I just wiped it off with a napkin (napkin quickly turns black) before it could burn through. Avoid the “one-time-use” super thin gloves, even if its nitril. The most important things to wear are regular nitril gloves, an apron and some kind of full face visor. 3M masks are excellent since they prevent fogging on the visor.

2.
1,6 kg of Acetylsalicylic acid

Purifying the aspirin to pure acetylsalicylic acid. All the guides I reviewed, around 8, had flawed or even dysfunctional methods. I had to locate an entirely different method from YouTube which proved to work excellently.

Estimated time required: 4 days to purchase the product in a secure manner (assuming each apothecary has a 2 box cap). You would need to set up an “apothecary route” visiting 20-30 apothecaries in one day, then wait 1-2 weeks for safety and repeat 3 more times the next 4-8 weeks. As soon as you have all the aspirin it will require 10 minutes to pulverize it with a regular stationary or handheld blender and approximately 2 days to synthesize.

Other reagents needed: distilled water, mineral and distilled ice cubes: around 40-50 liters

You will need purified aspirin equivalent to 2.5kg of aspirin tabs/270 boxes of 20 tabs (mostly containing 440mg (producer: Nycomed, brand name: Globoid) but about 1/6th was a different brand containing 500mg tabs (producer: Bayer, brand name: Aspirin). You will be synthesizing 1.6 kg or more of pure acetylsalicylic acid from 2.5 kg of impure aspirin tablets. The reason you need to purify the aspirin is to remove the 17% of so called “fillers”, stark etc. The maximum yield of pure acetylsalicylic acid you can extract from aspirin is 83%, if I remember correctly. I managed to extract aprox 67% (1.68kg out of 2.5kg) which is a good yield. It’s worth noting that all the guides I could locate online were either incorrect or significantly flawed. All the guides I read failed to inform me that if you heat the aspirin to more than 70ºC it will destroy the acetyl and convert it to salicylic acid which is worthless for our purpose.

Of course, I had to learn it the hard way and managed to create a lot of worthless goo… Fortunately, I eventually managed to locate a method that worked optimally and I only ruined the first batch.

a. Grinding the aspirin;
some retarded guides suggested I use a mortar and pestle… Needless to say, after a few hours, my wrists hurt like hell, and I realized this was an extremely poor method for the quantities I was working with. There must be a better way? I ended up experimenting and I found a very nice method. I put out a large plastic sheet on the floor and poured approx 1000 tabs on it, spreading it evenly. I then used a 20kg dumbbell (single hand weight used for weight training) and crushed the tabs with even strokes by using gravity. It took me less than 4 hours to crush all the tabs. In retrospect I realize that using a blender would be even better. Providing you use a blender (I prefer stationary, but I guess handheld works as well) which assures a good and even spread/circulation as you grind them (same principle as when grinding AN prills) it should only take you 10 minutes to grind up 2.5kg of aspirin tabs. It’s worth buying several brands of blenders to find out which offers the best circulation. Basically; only 1 out of 5 blenders offers appropriate circulation. Handheld blenders are probably the exception here since your motion determine the circulation, providing you grind it in an appropriately shaped container. With circulation I mean that as the lower part of the tabs get ground to fine dust, the heavy pieces of the tabs rise to the top until they are “sucked” down the “downward whirling current” – providing optimal grinding. I bought a total of 8 different blenders and only 2 of them worked efficiently for this purpose (at least for AN prill grinding). When completed; you now have 2.5kg of fine aspirin powder.

b. Manufacturing method

• 2.5kg of aspirin powder

• 5L of 95% ethanol (you can use the concentrated blue ethanol used for cleaning the windshield of cars for example, other types of alcohol works as well like isopropanol or butanol)

• Distilled water, distilled ice cubes: 40-50L
You will need 1ml of 95% ethanol for every tablet. This means that for 50g of aspirin (114 tabs x 440mg) you will need 114ml ethanol. Since you have larger quantities of materials you should use higher ratios as an effective way to save time:

I used the following ratios when manufacturing (these ratios are optimal!):

• 1040ml ethanol (I used primarily Isopropanol, 80-95% concentrated blue sprinkler fluid)

• 400g aspirin powder

• 6L distilled ice water

Alcohol note: I believe I used 95% concentrated sprinkler fluid: ethanol-Isopropanol (the liquid used for cleaning car windshields) but it might have been lower grade (80%?). I can’t know for sure since it wasn’t specified on the bottle. I performed a fire test and it burned, that’s all I know… 😛 I also made a batch with butanol (concentrated red spirits used as a fuel for some apparatuses). Since this batch was successful as well, I assume a large range of alcohols will do the job. However, I have read that methanol is not suitable.

1. In a 2L beaker, heat up 1040ml of 95% ethanol on a hot plate stirrer. Drop a spin bar in the beaker and start mixing in 400g of acetylsalicylic acid powder, under stirring, f example as the temperature reaches 50ºC. Very important; keep the heat between 60-70ºC. Do NOT let the heat surpass 70ºC as it will start to break down the acetyl and convert the compound into salicylic acid, which is useless for our purpose! The acetylsalicylic acid should be dissolved within 5-10 minutes if it is powdered, 10 more minutes if it is clumped, and up to 45 minutes if you are using whole tablets.

2. Filter hot, for regular gravity filtration you should use 4-6 funnels with 1-2 coffee filters in each (I used 1 but you should probably use 2) over f example 4-6 x 600ml beakers. Wash the 2L beaker with a small amount of ethanol and pour it through the filter to collect any residues. Then you may wash the filter 1-2 times with a small amount of ethanol to collect any residues. The compound left in the filter will be the aspirin fillers. Discard the filters and its content.

3. As you now have approximately 1.4L of ethanol-acetylsalicylic acid in your 2L beaker; pour 350ml into 4 x 2L beakers.

4. Place the first 2L beaker with hot 350ml of ethanol-acetylsalicylic acid mix into an ice bath. As an ice bath container; you may for example use a regular 10 liter plastic bucket (a 2L beaker fits this type of bucket perfectly with enough space for ice) filled with 0.5 liter of cold spring water and 3-4 plastic-pocket-sheets of distilled ice-cubes. You must use a weight of some sort to keep the 2L beaker submerged in the ice-water mix or it will float to the surface and fail to properly chill. You must now measure out approximately 5 times the volume of your ethanol-acid mix in ice cold distilled water that you cooled earlier. So for 350ml you will need 1750ml of distilled ice-water (very important; ensure that the distilled water is as cold as possible or you will not achieve maximum yield!). Add the ice cold water to the ice cold ethanol mix. This should more or less completely fill up your 2L beaker. The addition of the distilled ice-water will cause the acetylsalicylic acid to precipitate as it is insoluble in ice cold water.

5. Now filter the white slurry by gravity filtration using 6-10 funnels/filters/ 500ml beakers. You will obtain a white slurry-like compound in the filters. Remove the filters and its content, by wrapping them (so that the contents doesn’t fall out) and temporarily store them in a large plastic box. Empty the beakers (just pour the liquid in the sink) and get ready to repeat this process as soon as possible with your 3 other 2L beakers filled with 350ml of hot ethanol-acid mix. Try to complete the batch while the ethanol-acid mix is still hot as it might impact the yield if the hot ethanol-acid mix is allowed to chill to room temperature. I used more than an hour from start until I completed the last beaker and I didn’t notice any difference regarding the end result though.

Note:

• If you follow the above “aggressive” manufacturing method you should be able to complete all the batches (1.68kg total) within one single day of laboring.

• I managed to achieve a 67% yield (1.68 kg out of 2.5kg aspirin) because I was a bit sloppy when chilling the ethanol-acid mix (did not use weight to keep container submerged, and I could probably have chilled the ice water even more). If it hadn’t been for that I would have managed to increase my yield.

• The guide further suggest that you purify the acetylsalicylic acid a second time. I did not purify the acetylsalicylic acid. I do not know how this would impact PA production. Will the picric acid yield achieved be lower or even significantly lower if the acetylsalicylic acid isn’t purified a second time?

• Alternatively; you may use vacuum filtration for speed if you have the equipment.

Source:
http://www.youtube.com/watch?v=xHg1hx7Rf64

This method – further discussed:

Q1: Can you use cheap 70% isopropanol or methanol?

A: The extra water in 70% IPA would reduce the solubility of ASA and increase the amount of water required to precipitate most of the ASA. As for methanol, you have a lower BP and higher vapor pressure to deal with. You have to prevent loss of solvent (round bottom flask + condenser) and deal with the fire hazard (methanol is significantly more flammable, vapors even more so; and the flames in a well lit lab aren’t visible).

A: I used the 70% IPA and it worked fine. Just used a little more distilled water…

A: You don’t want to use too much alcohol otherwise you will dissolve other impurities such as triacetin. The ratio mentioned is the best ratio that has worked for me.

Q2: Is there any way to check if what I got is ASA?

A: An absolute way to test would be using FTIR spectroscopy or NMR spec. which may tell you what else is in the precipitate. If you want to test *only* for the ASA/SA in the precipitate, you could add sodium carbonate (CO2 = positive for ASA or SA), test melting point, etc. The easiest way though would be to add some metal cation that would selectively precipitate the ASA such as Cu+2, Ni+2

c. Gathering and drying
I chose to store wrap up the coffee filters containing the wet acetylsalicylic acid in a large plastic container until I was ready to process it.

I placed the filled filter papers on a super absorbent rag 5 times to get out most of the water. Afterwards I gently squeezed another rag on top of the papers absorbing even more liquid. I then used a plastic board, opened the seaming on the coffee filters and flattened them out like a pancake scraping off the content using a rubber scraper (the item used to evenly distribute cream on cakes is optimal).

After I had scraped out all the acid from the filter papers I spread the substance out evenly on the plastic board and placed the board in a room with an oven set to max. The temperature rose to around 30 degrees in the room. The day after much of the water had evaporated. I then semi ground the acid clumps and again spread it out evenly. After three to four days the acid was completely dry. Note: I’m not sure whether this is optimal way of drying as it takes several days for the acid to dry this way.

It would probably be a better idea to dry the acid in a large glass Pyrex dish in the oven at around 50-70ºC. 1.6kg would be too much for one dish so you would in this case have to divide it into 400g batches. However; I do not know for sure how this will impact acid, which is why I chose the hard way. It is definitely worth testing though as you will save several days drying it in the oven versus my other method.

You now have 1.6kg of acetylsalicylic acid and you have just completed the second most tedious task of PA manufacturing.

3.
Sodium nitrate

Sodium nitrate can be purchased from specialty chem stores, online or at an apothecary. It is commonly used to prevent bacteria growth in meat so many hunters buy it to prepare meat before freezing. Half a teaspoon is mixed with salt and other herbs and rubbed into 25kg of moose meat for example.

Alternatively; you may synthesize sodium nitrate relatively easily. However, I will not add the guide for this manufacturing method here.

4.
Distilled water

Always use distilled water when preparing and manufacturing acetylsalicylic acid and picric acid. You may buy it in car-stores as it is used as battery water. I ended up buying a total of 170L for creating 1.5kg of picric acid.

Practical tips – preparing large quantities of ice cubes: acquire a big freezer where you can store a lot of distilled ice (you fill the plastic “pocket sheets” with distilled water and squeeze the frozen cubes out of the plastic as your need arises). I converted 40-50L of distilled water into ice cubes this way (took me about 10 hours) and I filled up a large freezer for this purpose. You can only prepare smaller batches of ice cubes at a time though as you can only stack 2 layers of plastic ice- cube sheets at a time. Then you will need to wait 30-60 mins for it to freeze or the weight of the water will cause leakage in the lower levels of ice cube sheets. I also prepared ice cubes made from spring water. Just mark the plastic sheets of mineralized water with a large black X, from a permanent marker, on each side, prior to filling, so you know which sheet contains distilled and which contains mineralized water.

Producing Picric Acid
Now that you have prepared 1.6kg of acetylsalicylic acid and 9-10L of 90%+ sulfuric acid you are halfway into manufacturing picric acid.

See guide
I used the following measurement for creating PA. I had a negatively disproportionate amount of sulfuric acid so I used a little more acetylsalicylic acid and sodium nitrate.

In a 1L conical flask I heated 600ml (700 is optimal) of 90%+ sulfuric acid in a 1L conical flask up to 60ºC. I then, over the next 2-4 minutes mixed in 112g of acetylsalicylic acid under stirring (using a hotplate magnetic stirrer). I then turned off the heat as the nitration would ensure enough heating.

I then started the nitration process (adding 190g of sodium nitrate slowly the next 140 minutes. I added 0.3g each 15 seconds for a total of 1.2g per second making sure to keep the temperature between 60-70ºC. I kept the temperature at around 66ºC to be precisely. Keeping the temperature stable at around this heat is essential. After about an hour I had to turn up the stirring power to max as the liquid thickened.

After 140 minutes the solution was fully saturated (even though I had 24g of sodium nitrate left) and it “bloomed”. Blooming is like a reversed melting process in which the solution solidifies and no amount of stirring can stop it. I do not know for sure if this is correct as I have never seen a guide describing it. Regardless, I kept on stirring every 5 minutes for the next 30 minutes, and then every 10 minutes for the next 30 minutes to prevent the increasingly “growing” substance from overflowing. This was one of my “successful” batches which contained approximately 40-50% pure PA crystals. 80% of my batches “bloomed” in this manner. It took around 4-5 hours for the container with the unpurified PA to reach room temperature. The 1L conical flask was 800ml full. At this point, I could continue the process by slowly scraping out 400 ml of semi-clumps of PA into a 2L beaker with 500ml of distilled water and the rest distilled ice cubes (filled up to 1400 ml). After proper precipitation I poured it into 6 x 500ml beakers with the same amount of funnels/filter papers, saving the filtrate and pouring out the liquid into a 100L plastic bucket (which was later to be dumped near a death-sentenced-bush, outside 🙂

Corrections to previous guide based on my own experiences and research while producing 10 batches of unpurified PA. When I first started this production process I assumed I would end up with a relatively pure end product, perhaps 70-80% pure after washing a couple of times. Needless to say; it was significantly more time consuming than I thought and I had to learn the hard way due to significantly lacking and even misleading guides. The positive surprise though, was that handling PA was significantly safer than I thought. I started out as overly careful as regards to PA and metal. Although you have to be careful, know that PA is perhaps the most safe booster you can work with. Unpurified PA isn’t, in most cases, even flammable. So you don’t need an exceptional fume hood and fan. An improvised version will work just as well for this purpose. After I had bought a fume hood I invested in two fans, one cheap version (it was actually just a dust collector suction fan) retailing for 140 euro. I also invested in a much more expensive fan (especially manufactured to prevent explosion) retailing for 950 euro. It would seem I was way too paranoid as the only dangerous gas you ever need to worry about when manufacturing PA or DDNP is the NOx gas during nitration and also H2S and SO2 during DDNP manufacture when acidifying the sodium picramate solution but these gasses aren’t explosive at all. I was somehow worried that the anti-metallic nature of PA would prevent me from using a metallic fan-tube. However, using one is not a problem at all as all the PA remains in the beakers. So don’t worry at all about explosive gasses cause there aren’t any. And you don’t need a hazmat suit either. Just use regular nitril washing-up-gloves and a good 3M face mask with visor and acid filter/vapor gas filter (nr. 60923 – multifilter) and you’re more than fine.

A few guides states: after you mix in the acetylsalicylic acid with the 90%+ pure sulfuric acid, slowly mix in the sodium nitrite. A few guides did not even specify in more detail than this.

1. What many guides failed to mention and which I had to learn the hard way after ruining several batches; it is ESSENTIAL that you do the nitration (mix in the sodium nitrite) between 60-70ºC. I found out that if you mix in the sodium nitrite below 60ºC some of it turns into a layer at the bottom of the conical flask which grows ever thicker. This layer can potentially sabotage and ruin your whole batch. If the temperature suddenly rises this layer may suddenly “melt/loosen” and cause a nitration “overdose” as it mixes with the rest of the content which may increase the temperature with up to 20ºC within minutes and severely deteriorate the yield of the batch. This layer may also affect the magnetic stir bar and cause it to not stir properly. So make sure you prevent this from happening by keeping the temperature around 65ºC and never let it drop below 60ºC.

2. What ALL the guides failed to mention was the fact that the addition of the sodium nitrate increases the temperature of the content. So basically; as you start the nitration just after you add the acetylsalicylic acid at around 50-60ºC, you don’t need any heat at all during the process as you can keep the heat between 60-70ºC by adding sodium nitrite (or potassium nitrate). Rapid heat fluctuations is the most severe threat to your batch and temperatures above 70ºC (not exactly sure about 70ºC perhaps 75ºC) will deteriorate your batch and cause a significantly lower yield. By deteriorating I mean lowering your yield of pure PA crystals from an optimal 50% down to 10% in a worst case scenario.

3. What all except one guide failed to mention was the importance of the glassware you are using. I used 2 x 1L beakers and 1 x 1L conical flask. All of my beaker batches ended up with a very low yield for the following reason; the magnetic stir bar works significantly better in a conical flask. I had problems in the beaker as the stirring was significantly reduces (even at max power) due to the shape of the container and the fact that I had a glass temperature rod which very presence significantly reduced the stirring output created by the stir bar. In any case; use a conical flask instead of a beaker if possible.

4. On my most successful batch I used a 1L conical flask with 600ml of sulfuric acid (90-95%). On average; I added 1.2g of sodium nitrate per minute (for my two most successful batches). Instead of dropping 1.2g in one go each 60 sec, I added aprox 0.3g every 15 sec (in other words 4 times x 0.3g per minute). I sat there for 2 hours and 15 minutes doing that on my most successful batch (with 2 x 5 minute breaks). You can imagine the agony of sitting there with a 3M gas mask on a rotten chair with your back hurting adding 0.3g every 15 sec. Its repetitive, extremely boring and frustrating. You will start to curse the fact that you didn’t set up a TV nearby, or the fact that you only bought one hot plate stirrer instead of three. The prospect of doing this 10 times can be psychologically challenging. So take all measures to make your time more efficient. I managed to barely survive with my sanity intact thanks to my iPod <3 5. Acquire 3 x hot plate stirrers if possible. The nitration process is an extremely tedious and frustrating process. With three hot plate stirrers you can add 0.3g in three separate conical flasks speeding up this bitch of a task 300%. A hot plate stirrer retails for 300-500 euro so its affordable. Also, it's less suspicious to buy 1 than 3 🙂 as three mostly indicates that you are going to resell them <3 6. Creating PA proved to be a very unforgiving manufacturing method. Several things can go wrong, and most of these things relate to impatience -> too much sodium added per minute -> temperature rising to fast f example; I took a break a couple of mins too long and came back to see the thermostat at 59ºC. I tried to compensate with a little extra sodium nitrite, which didn’t seem to have any effect on the temp. I added more and suddenly the temperature exploded and ended at 81ºC. A couple of other times I got too impatient and added too much per minute (although at the time I believed that a temperature above 70ºC wouldn’t make a difference – I eventually learned that it makes all the difference). You need to be rested and focused before you begin this process (I was exhausted on several occasions which made me lose focus a few times and thus ruin the batch). As long as you focus and add the sodium nitrite 2-4 times per minute x 0.2-0.4g you should be fine.

Prepare mentally for the nitration process. Don’t start if you are physically tired or if you need to eat any time soon. Just prepare and if possible have a radio, TV or iPod at your disposal.

7. Don’t assume that the precipitate you end up with will be above 60% purity. Consider the precipitate you end up with grapes, whereas the actual pure PA crystals are the seeds in the grapes. If you do the process flawlessly the seeds will be large, but if you make mistakes, they will be significantly smaller. This will save you the disappointment I encountered:-). Out of 1.2kg of unpurified PA substance I ended up with only 200-300g of pure PA crystals. Had I done everything optimally I would have ended up with 1.5kg of unpurified PA substance and perhaps 0.8-1kg of pure PA crystals.

8. You can mix in the acetylsalicylic acid quickly. I never spent more than 5 minutes mixing it in, in the beginning of the process. As soon as you have mixed it in and it has fully dissolved you can start the nitration process. I usually mixed it in at around 60ºC and started the nitration process at around 60-65ºC.

Washing
It says in most guides that you need to wash with ice cold water 2-10 times. Basically, if you want to do this; just pour water over the filter to clean away sulfates. However, as you need to purify your yellow PA substance anyway, it is pointless to wash it! As I didn’t know this at that time I washed the PA-substance 2 times, and the batch intended to create DDNP; 4 times.

How to find out whether your yellow unpurified PA substance is pure

Fire test:
Purified (<80%) PA burns, unpurified PA (>60%) does not! I would imagine it would burn faster and more consistent the purer it is. I tried the fire test on all my batches of un-purified PA substance and none ignited, not even my best batch, even though I heated it until completely dry in the oven. I would therefore assume that you need a certain % of pureness for the substance to ignite – perhaps 50-60%+

Eyesight:
I found this out myself by observation of substance and comparing to the yield achieved by the purification process. The more pure your PA substance is the more it will “sparkle”. It is the pure PA crystals that make it sparkle. Needless to say; the more crystals, the more sparkles. Usually, an optimal produced batch of unpurified PA substance is pale yellow that “sparkles”. It’s worth noting though that one of my pale yellow batches had a very low yield so color isn’t everything and 100g of pale yellow PA substance can in fact prove to yield less than 20% of pure PA crystals.

IMPORTANT: DO NOT assume that your unpurified PA substance is suitable as a high explosive booster! On my test blast I used 3g DDNP with 50g unpurified PA substance as a booster. At this point in time I believed it was potent but wanted to test for sure. Needless to say, the completely dry impure PA substance did not detonate and was just spread all over after the blast. I later (when I purified the rest of the same batch) found out the yield in that batch was a lousy 10%, so no wonder it didn’t detonate.

Purification
Time required: 3-4 days for 1.5kg of unpurified PA substance.

Purification of the yellow unpurified PA substance is required as you need to be sure that the substance is potent. You will need approximately 40-50 liter of distilled water to purify 1kg of unpurified PA substance. You also need a 2L beaker for boiling/mixing and 20-40 other glass containers for chilling the liquid after the boiling/mixing. The chilling process will take up to 1-2 days so unless you have enough time, you should get A LOT of glass containers, to do everything in 1-2 batches.

Boil up 1.3 L of distilled water (70-80ºC) in a 2 L beaker. You don’t need a hotplate-magnetic stirrer for this as a limited amount of stirring is needed. In fact a regular plate would go considerably faster since it heats up faster.

Start to dump in the unpurified yellow PA powder (powdered or clumps – around 50 g, exact weight isn’t important). If the amount doesn’t saturate the liquid you can put more in, until it is no longer soluble and bits of PA floats around. Just ensure everything dissolved before you go to the next step. Have a container of 500 ml additional water nearby and add it once you need to dissolve the insoluble PA. You can regulate the temperature somewhat with adding additional water to ensure the temp doesn’t exceed 80ºC. I don’t know for sure whether temps exceeding 80ºC will deteriorate the PA but I read from another source to keep temp between 70-80ºC so no harm following that advice. It said another place to remove the brown oil droplets. I tried this in the beginning with a plastic spoon but noticed that it impacted the yield of pure PA as I also removed some pure PA floating around with the droplets. I only noticed the brown droplets in my first batch which was very poorly made, but not in the other batches. There will hardly be any so just ignore this altogether.

1 L of liquid is saturated with 15 g of pure PA so this fact allows you to measure the yield of your yellow PA powder and the number of grams you can expect to purify. 50g of yellow PA powder in my case yielded from 10-50% of pure PA crystals. My poorest yield was my first batch. 300 g of PA powder was almost inert and yielded only 30g of pure PA crystals. The other batches of PA powder was a better yield ranging from 15-50%.

When the liquid is saturated (you should have 1.8L of PA liquid), filter hot into glass containers. Filtering hot is not very important unless your PA powder is very unclean, like my batches (it was everything from bugs to other small impurities like pieces of plastic). I filtered 1.8 L into 4 x 500 ml beakers but since I only had 10 of these beakers I eventually started using all types of glassware. Since the crystals (when cooling slowly) “grow” slowly like bacteria I assumed using items which they use to boost bacteria growth would work in these cases as well. I experimented with various glass containers, different shapes and sizes. I used flat, long (long drink glasses), small, with everything from glass rods and plastic sucking straws in.

My findings were not 100% conclusive, in fact I’m still very uncertain, but I got the impression that certain shapes and sizes will allow for a greater yield. Smaller containers seemed better than large containers and adding plastic sucking straws so the crystals got more “surfaces” to grow from was a slight bonus. Beakers larger than 600ml yielded a lower result. I ended up buying 18 long drink glasses (each 300ml) which yielded an ok result. I was surprised to learn that the best yield was from a large circular glass bowl (5 liters) which I placed 1 liter of liquid in. It was an unclean bowl I had previously used to store my bananas in (in a plastic bag). In any case; the yield of pure PA crystals was 100-200% better than in other containers. I do not exactly know why; perhaps it was the dust particles in the bowl or possibly bacteria that promoted the increased growth. In any case; it indicates that the described purification method is flawed and the issue is worth investigating further. For obvious reasons, I don’t have time for more research into this issue. Also keep in mind that larger glass containers uses considerably longer to cool (several extra hours).

Cool the two 600 ml beakers to room temp. For a 500 ml beaker this took 4.5 hours and a few hours extra for the 2L beakers. I notices, however, that when I let the beakers sit overnight (for a total of 12 hours) there was considerably more PA crystals generated. However, I do not know for sure if this will impact the total of crystals generated after you have further cooled it down in the fridge. When the beakers and other glassware you might have used are at room temp (don’t hesitate to let it stand for several extra hours, perhaps up to a day or two, after it has hit room temp) – then, put the beakers in the fridge. It said in another guide that I was to put it in the fridge for one hour but I’m pretty sure he meant that I chill the liquid down to 4ºC. Considering that I was purifying 1kg of unpurified PA powder and I had A LOT of beakers and other glass containers, it took 12 hours in the fridge for the beakers to reach 4ºC (since the room temped containers raised the refrigerator temperature from 4ºC to 12ºC within the first hour…:-) So, if you have a small fridge, like I did, consider chilling the containers in a “transit location”, if possible, in order to shorten the “fridge time”. I used the cellar floor which holds 8ºC. This saved me a total of 36 hours of “fridge time”. Filter once the liquid hits 4-5ºC (perhaps we can even increase generation rate if we let stand even longer. I am really not sure about this but it is worth investigating further.

The other guide said: scoop the crystals out of the filter. However, I like to save the crystals in the filter until I have a large enough batch to process as it maintains the moisture well and keeps it cool. I also like to process the filter papers all at once by using a 2m x 1m plastic board. I open the “seam” on the coffee filter papers and flatten it out like a pancake. Then I use a plastic/rubber spoon like object (the item used to smear cream on cakes) to get all of the content out.

Storage
When you have taken out all the crystals from the filters, put them in a plastic box and keep them with at least 20% water content (no problem if you take them out of the moist filters – newly moist filters = approx 100% water content).

These should be used within 2-3 weeks or they may start to deteriorate and/or may increase sensitivity and thus become more dangerous to transport (according to another guide). If you store them saturated with alcohol in a sealed glass container, you can basically store them safely for 100 years +.put in oven for an hour.

Drying before use
Dry in oven for 30 mins to 4 hours based on water content between 50-80ºC before use. I dried the unpurified PA substance in the oven (no problem) but haven’t yet confirmed with pure PA crystals. It should be safe because I dried DDNP in the oven the same way, which should be considerably more sensitive.

Preparing 1,800kg of AN prills (CAN 27-0-0)
There are large 300-600L diesel tanks in most farms (for fueling the tractor) so just call the supply company and order the required amount of diesel. My 300L tank was almost half full so I ordered an additional 150L this way. I also bought 5 x 20L gas tanks to transport the diesel from the equipment building (where the diesel tank was) to the barn cellar (where I was going to manufacture the ANFO). Since a 20L plastic tank is too heavy to handle efficiently I poured the content into 5 x 4L plastic bottles which I had leftover from all the distilled water used previously.

When you make the order at your local farming supplier (the supplier near the farm you are renting) you should order twice as many “dummy fertilizer). Obviously, before you can make an order in the first place you need to register a “farming company” and acquire a “producing number” from your government. In other words, you have to register as an “official farmer” or you will not be able to make an order from the farming supplier. You should also have enough farming land to justify the order you are placing. 50-90 decares (5-9 hectares) should allow you to easily justify the purchase of 4-5 tons of fertilizer whereas half being CAN 27-0-0. If you do not take these precautions there is a chance you may not pass the scrutiny of the farming supplier as red flags will arise. Also. f example when you order 3 x 600kg bags of CAN27 you should also order at least 3 x bags of the two other types of fertilizer. I ordered 5 x 600kg bags of CAN27 and 5 x of 600kg “dummy bags” which proved to be too much for one person to process.

I then told the office to place the CAN inside of the equipment building and the rest outside. The supply truck uses a “hook” that can place the bag in a 3m radius of the truck. The positive thing about this is that I could close the building sliding door (3 x 3m) and further process the AN without anyone outside noticing.

I then brought 14 x 50kg fertilizer bags (previously ordered from a Chinese company, the bag has two layers, a carry layer and an inner plastic bag that prevents moisture getting in or out) and filled up the bags, transporting them to the barn basement by car (the barn basement is 100m away from the equipment building). When I had emptied 3 x 600kg bags I had around 36 x 50kg bags which I had transferred to the barn basement. Don’t worry about water absorption at this point as the prills have a layer that prevents the prills from absorbing liquid.

I bought several different blenders (both stationary and handheld) and found a suitable machine, which I bought 8 of. This blender, a stationary Electrolux machine with an ice crushing function offered optimal circulation of ground material vs. prills which allowed me to grind 1kg every 30 seconds. I set up 4 of these blenders 5cm from each other on a work bench with an empty 50kg fertilizer bag next to a bag filled with 45kg of AN prills (placed just below the 4 blenders so you can empty the blender glass containers quickly and pour it into the empty bag). You fill up each blender and put it on the lowest strength grinding (you don’t really need more grinding power than this and higher power will most likely wear out the blenders considerably faster). I made a nice rotation ensuring that the uptime of the 4 blenders. I then prepared 12 x 4L containers of diesel close by. Although ANFO requires 7% diesel for optimal detonation you should add 10% or perhaps even 13% like I did to account for any evaporation etc.

As you crush the prills to fine powder it will immediately start to absorb water from the air, so as soon as you have ground a portion you must hurry to pour the content in the empty bag. Once I had filled up 1/4 of the bag I added 1.7L of diesel, before continuing. You add approximately 1.7L at as you fill up the bag with 1/4, 2/4, 3/4 and 4/4. When completed I wrapped the inner bag (like the way you make a pig tail on hair) and closed it with 10 cm of duct tape. Then continuing to wrap, I left 2 cm of empty space before doing the same again. I then bent the upper wrapping down on the lower wrapping and closed it with more duct tape. I then wrapped the outer bag with two portions of 20cm duct tape. I don’t know for sure if this is optimal, but I couldn’t think of a more efficient way to seal the bag properly. After I had grinding 600kg of prills the first blender broke down (the knife handle broke). The second machine broke down shortly after. I replaced these with the backup blenders and continued until I was done preparing 34 bags x 50kg ANFO. By that Time 3 blenders had completely broken down and one more was partly dysfunctional.

Time required to prepare 1 x 50kg bag of ANFO using the above method
It took around 30-40 minutes to prepare each 50kg bag of ANFO. So I spent around 3-4 nights (from 23.00 to 8.00) working this way until I was completely done. I chose to work at nighttime because I wanted to do everything I could to prevent detection. I covered the windows and closed the door on the inside (I had to install a closing mechanism on the door). Due to the loud noise made from the 4 blenders you can’t really hear anyone approaching so I wrote a note on the door of the main building which encouraged them to call my mobile if they needed my presence (add a smiley <3). This work is very tedious so I had my iPod on for most of the time at max volume. I took a 5 minute break for every 2 bags I completed (so basically every 120 minutes). Occasionally, I would have to drive to the equipment building and fill up my 20L diesel containers. I originally planned to process 2 more 600kg bags of AN prills but I was so exhausted that I decided 1800kg would have to do. Mixing in aluminium powder and micro balloons in the ANFO
Adding 10% (by weight) of aluminium powder and 2-3% (by weight) of micro balloons will increase the sensitivity and power of your ANFO substantially. Considering the fact that we do not have access to 34-0-0 (much purer AN) I assumed adding at least the micro balloons would be required to ensure detonation.

Considering the fact that AN powder will absorb water so quickly I concluded that it would be appropriate to add the AL and MB after I had saturated the AN powder with diesel.

You now have around 36 x 50kg bags packed with ANFO

Adding aluminium powder and micro balloons
Commercial ANFO contains approximately 2-3% of micro balloons according to a couple of sources, which makes the ANFO more sensitive and thus requires only a standard blasting cap to detonate. However, commercial ANFO is much purer than the 27-0-0 CAN available to farmers.

I’m now going to mix in the AL and MB using:

45kg of ANFO 5kg of AL (I’m using 400 mesh(62 microns) leafed AL 1,2kg of micro balloons

For a total of 51.2kg per bag

The 150kg of AL came in 4 hermetically sealed drums each containing around 37kg of AL. After reading the “security precautions”, however, I was completely freaked out. The drum openings where wielded with a soft metallic substance so it was not going to be easy to open them without extreme risk (I thought). According to the warnings; contact with oxygen will risk detonation of the AL, contact with metal, concrete and even plastic will significantly increase the chance of static electricity which can cause a detonation. Friction and shock can also cause detonation. Close proximity of oxidizers (gas, diesel) or close proximity to electrical outputs etc can cause detonation.

At first, I thought I would manage to create enough picric acid booster material (1.5kg in total) to disregard the addition of AL powder. But considering the fact that I only managed to produce 200- 300g of booster I had no choice than to continue the AL addition.

I first planned on creating an outdoor mechanism that allowed me to thrust a steel spear like object, by using gravity, creating a 3 cm hole in the top of the drum. However, I ended up taking a regular knife and starting to file down the wielded enclosure, even if it involved high risk. Eventually, I manage to file open the enclosure. I then considered putting the drum upside down in one of my empty fertilizer bags to prevent the presence of an abundance of oxygen.

This method proved to be too exhausting since I had to hold up the 37kg drum with my hands. I ended up with putting a large 3 x 4m plastic sheet on the concrete floor and carefully pouring the AL powder out of the opening. Small clouds of dust began to generate but nothing happened. I carefully continued until the drum was empty rolling the side of the drum in a circular pattern from the center of the AL powder already poured out, until the drum was empty. There were small clouds of AL powder generated but the biggest one was approx 20 cm in diameter, which settled down after a while. I continued after the small clouds had settled. It’s also worth noting that I had closed all the windows of the cellar basement so the humidity was relatively high, while oxygen level was below average.

In any case, this method worked well and I had gathered all the AL powder on the sheet, and thus preparing it for the addition to the ANFO.

I plan to mix up 1.2kg of micro balloons per 45kg ANFO. I have a total of 40kg of MB in 5 large bags. It is a powder-like substance and inert. But according to the sources; when mixed with ANFO or ANALFO it will generate hot spots and thus making the ANFO or ANALFO more sensitive. I just hope I have the correct type of micro balloons… I assumed that the micro balloons were 2 mm in diameter but these seems to be 0.2 mm or so.

ACLU and Shepard Fairey drape Lady Liberty in nationalism & jingo-freedom

New ACLU promotional poster by Shepard Farley (sic) features Statue of LibertyIs “Freedom” the same thing as Liberty? Let’s see, ACFU? It has an unfriendly ring to it.
 
The American Civil Liberties Union commissioned this fundraising magnet from halftone-deaf one-note Obamartist Shepard Fairey, but somebody confused this for a Department Of Defense contract. “Leading Freedom Forward”? That’s USA’s imperialist catchphrase! Please note at the helm is Fairey’s first client: Obama.

Linguists have long lamented America’s abandonment of liberty for the nefariously vacuous “freedom.” Freedom is for Operations, Markets, CIA-funded Pro-Democracy [sic] ops, and O-wellian doublespeak. “The Price of Freedom” is the title of the Smithsonian’s military history exhibit. Now the ACLU jumps on the war-wagon? That’s the Statue of Liberty with a bullhorn, as a union organizer — you can tell by the clipboard, but they’ve draped her in a flag, literally. Can you imagine any national monument with less need to prove her patriotism? I would have preferred they had used blind Lady Justice in reference to nationalism, where her blindfolded could have been the Red, White and Blue. But that’s probably a too obvious fashion statement about fascism. Dear ACLU, where are you going with this?

Let me clarify my criticism of Shepard Fairey. He’s a brilliant artist. By “halftone-deaf one-note” I refer to the FANS of his Blue Period, circa 2008. My beef is that this work recalls Fairey’s iconic Obama poster, though obviously it wouldn’t be considered a “Shepard Fairey creation” if it hadn’t. But. Is it appropriate that the ACLU wants to promote itself and its vital uni-partisan cause, with a ubiquivisual trademark that screams Democratic Party? Thankfully ACLU’s legal team at least has not failed to recognize Obama’s DP as the current reigning champion of civil liberty oppression.

Huckabee out, Trump out; Obama too can bow out, has same nothing to offer

hope change justice peaceIN LIGHT OF TERM 2008-2011,
IDEA FOR OBAMA 2012: If you’re neither going to close Guantanamo NOW, unmake war, support popular uprisings against authoritarianism, intercede with the environment, challenge corporate malfeasance, rein in the banksters, reverse class inequality, repeal the Patriot Act, reestablish transparency, restore justice, nor even reignite faith in American democratic righteousness,
MIGHT I SUGGEST YOU DECLINE presuming to need a second term? Because really, what is it you propose you have to offer?

Peaceful protest movement infiltrators Mark Kennedy, Lyn Watson, cops Karen Sullivan, Daniela Cardenas unmasked

enlargeSocial justice activists across the US are uniting January 25 to protest the infiltration of peaceful protest groups by law enforcement and intelligence agencies. As European environmental organizations reel from the revelation that high-profile activist “Mark Stone,” really PC Mark Kennedy, served undercover for London’s MET for seven years, the Guardian has confirmed another unnamed infiltrator, identified by activist sources as “Lyn Watson.” A longtime Leeds Common Place volunteer, Watson is reportedly serving at another undercover location. enlargeKennedy is in the US evading the blowback of many EU and UK former comrades. As US lawyers fend off grand jury inquiries against chiefly Palestinian-rights advocacy groups, the Minneapolis based Anti-War Committee has obtained confirmation that FBI agent “Karen Sullivan” had been disrupting from their midst since the 2008 RNC. A “Daniela Cardenas” is considered to be her accomplice.

While accounts vary between MET officer Mark Kennedy “going native” and privatizing his surveillance services, there are reports that Kennedy had been sexually intimate with a number of the activists he had been infiltrating. The role of “Lyn Watson” becomes critical because her reports would reflect that the authorities knew of and did not halt officer Kennedy’s improper conduct.

Green activist are debating the merits of releasing details about the infiltrators. Save Iceland made this excellent statement about Kennedy.

UPDATE UK:
To prevent further details from going public, the comments section has been disabled for the original Guardian article which refuses to name, or unscramble to photograph of Officer A, aka Lyn Watson. A subsequent UK Indymedia article has been deleted together with its thread. Discussion persists at another IMC in Sheffield now suffering under a common ISP hobble of sites designed to serve secure pages through HTTPS, having its certificate called into doubt. As a result visitors are warned by their browser that the site cannot be trusted until they finally desist from clicking through. For the benefit of those timid souls we reprint the comment thread, as of 4PM GMT.

Hold on …
13.01.2011 09:54

It says she disappeared in 2008, but someone is quoted saying “she was present at Drax and Heathrow climate camp actions, against Coryton oil refinery and various anti-capitalist gatherings and protests” … but the Coryton blockade was last year. Or was there some other Coryton action I wasn’t aware of?

Shame the Guardian took representations from the cops and no one else. They’ve even decided against a comments section – maybe in case someone decided to put her name up.

I might be missing some key piece of info or argument here, but I really think people have GOT to post her identity up here – people will want to know what info the state now definitely has on them etc.
proof-reader
Her activist name was…
13.01.2011 10:12

Lyn Watson. Haven’t got a photo though.
Someone
there was a earlier coryton blockade
13.01.2011 10:26

,,, on fossil fools day. yeah, i don’t see a problem in posting her (false) name… though in general i’m not sure what feeding this story is doing for our movement… though i am perfectly aware their is a wider public interest at stake…but it may cost us dear.
old timer
Media Whores
13.01.2011 11:43

Knew it was only a time before Dr Chatterton got his name in print. Seems to be one rule for the oi polloi and one for the careerists.
ACAB
No news here
13.01.2011 12:04

She came under suspicion long before Flash Mark did. When he was confronted, hers was the name put to him and he, apparently, said she was part of the “same unit” as he was, but was otherwise not forthcoming. She was long gone by then.
Stroppyoldgit
She may not have put it about like Shagger Stone…
13.01.2011 12:09

But Lynn certainly wasn’t averse to a roll in the hay.
Sleaze-watch
To say or not to say
13.01.2011 13:07

I can see both sides of the argument about how much to say about these spies.

On the one hand saying what has been going on will get some sympathy. On the other it reveals the spies who have been spotted, which tells the enemy which spies have not been spotted.

I come down slightly on the side of exposing them to the light of day. Circulate their photograph and brief details widely, together with what they were up to. This will allow those involved with them to realise who they are, even if they used a different name. The police and other forces of darkness will suffer more from the truth than we will.

A N Other
Thanks for the pic
13.01.2011 13:52

Many thanks for putting a pic up. Does anyone have a better one though. I’ve been told that I definitely know this woman, but can’t think who she is/was.
Leeds activist
medic?
13.01.2011 14:21

Am I correct in thinking she was involved in our medic collective?
fleabite
Guardian website
13.01.2011 15:12

I have been keeping an eye on the Guardian web site http://www.guardian.co.uk/uk/2011/jan/12/second-undercover-police-officer to see what people had to say.

They opened up coments then suddenly stopped them, including not just saying that some comments had been removed by a moderator but deleting them entirely as if they never were. The entirely deleted comments are the ones that point to Indymedia and this thread in particular.

Possibly after “Officer A” was withdrawn from her unethical activities against campaigners she was pointed towards groups she should have been working against all the time, criminals. Unlike campaigners criminals may not be too kind to her.

If that is the case I have limited sympathy for her. Injury or death is not right, even for a maggot like her, though she deserves any verbal attack she gets for spying on campaigners. Her bosses got her into whatever situation she is now in, they should get her out of it.

Time to make sure information about her is spread widely, so the police can’t attack a single point like Indymedia and suppress the information.

A N Other

US vexed Swiss will support peace not peacekeeping or peace enforcement

In a Dec 2, 2008 diplomatic cable released by Aftenposten, the US ambassador to Switzerland reports that US-Swiss relations “lack the natural intimacy and trust” because, he laments:
 
“U.S. and Swiss soldiers never fought side-by-side in a war, no Swiss town felt an emotional bond to the U.S. for a past liberation or economic assistance program,” which creates the vexing obstacle that the Swiss Army won’t lend their knives to NATO or other USG non-multilateral projects:
 
“The Swiss military is limited by law to participating only in peace support operations (PSOs) — as opposed to peacekeeping or peace enforcement –“ I’ll interrupt here to highlight the distinction which the historically-neutral, tri-lingual, direct-democracy Swiss nation makes, perhaps like the Inuit and their fabled hundred words for snow. Americans are sold only one kind of peace, which has to be kept and enforced. We have only one word for peace and it’s not peace.

Wikileaks: US kept informed of Israel plan to starve Gaza, but not to death

A report just published by Physicians For Human Rights, entitled “Humanitarian Minimum,” is explained by a Wikileaks cable leaked by Norway’s Aftenposten from their cache of the heretofore Israel-cleansed Cablegate. This one from November 3, 2008 which reported that “Israeli officials have confirmed to Embassy officials on multiple occasions that they intend to keep the Gazan economy functioning at the lowest level possible consistent with avoiding a humanitarian crisis.”

Wikileaks Cablegate on 2008 Olympics: US rats on Dutch radio avoiding IOC & Chinese censors via complex intertubes

Aftenposten’s monopoly on unleaked-by-Wikileaks-leaks went comparatively stale this weekend for American readers at least, but there was this nugget in a Beijing Olympics “Situation Report.” The last item of an August 21, 2008 diplomatic cable told how a Dutch pirate radio operation was able to circumvent Chinese censors and an International Olympic Committee exclusivity contract. By reporting “Radio 538 is using a complex system of ISDN telephone lines,” the US embassy was less ratting out the Dutch than revealing its own misunderestimation of Chinese internets and/or intertubes.

22. (U) Dutch Radio Station Evades Censors:

The Dutch commercial broadcaster Radio 538 on 08/19/2008 continued to defy both the Chinese censors and the International Olympic Committee (IOC) by broadcasting live from Beijing during the Olympic Games, according to a Dutch radio report.

Officially, the only Dutch broadcaster registered to broadcast from Beijing during the Olympics is public broadcaster NOS. Unlike officially registered broadcasters, Radio 538 is not required to send its feed through the Olympics Broadcast Center, where Chinese authorities could theoretically censor its output.

Instead, Radio 538 is using a complex system of integrated service digital networks (ISDN) telephone lines to transmit its broadcasts out of Beijing and to foil authorities´ attempts to block its transmissions.

Radio 538´s connection with its Beijing studio has been down for only 20 minutes on one day since the beginning of the Olympics, according to the Dutch radio report.

For the regularly appended list of USG cables released exclusively in Norway, check this Aftenposten link. For a daily summary written for an English audience, check Views and News from Norway.

Wikileaks reveals inventory of US possessions critical to corporations

To complain that a wikileaked list of off-US-soil “critical infrastructure and key resources” provides a checklist of targets for aspiring terrorists is to pretend that opponents of the US empire are as simple minded as American television viewers. The importance of most of the so-called Critical Foreign Dependencies is self-evident, more curious is how the US deems these proprietary interests, to what extent it will protect them, and for whom. Sole manufacturers of vaccines might be vital to public health, but what of communications cables, international ports, supplies of industrial metals and suppliers of components to US weapons systems? Those are critical only to bottom lines. The 2008 report in the State Department cable leaked yesterday reveals infrastructure critical to multinational corporations, whether US or not.

While American airwaves are full of denunciations of Wikileaks and Julian Assange for endangering the US, the Western press is ignoring incendiary cables making their rounds in the Middle East, in which the Lebanese Defence Minister Elias El-Murr asks his American liaison to assure Israel that a next invasion, restricted to rooting out Hezbollah, would not be opposed by Lebanese forces.

Amazon, Paypal and EveryDNS have thrown in with those that would censor Wikileaks, likely also Google and Twitter. Try to find the El-Murr story through Google News or Twitter.

Here’s the text of the 2009 cable:

2008 Critical Foreign Dependencies Initiative (CFDI)
critical infrastructure and key resources (CI/KR)

AFRICA

Congo
(Kinshasa): Cobalt (Mine and Plant)

Gabon:
Manganese – Battery grade, natural; battery grade, synthetic; chemical grade; ferro; metallurgical grade

Guinea:
Bauxite (Mine)

South Africa:
BAE Land System OMC, Benoni, South Africa
Brown David Gear Industries LTD, Benoni, South Africa
Bushveld Complex (chromite mine) Ferrochromium Manganese – Battery grade, natural; battery grade, synthetic; chemical grade; ferro; metallurgical grade
Palladium Mine and
Plant Platinum Mines Rhodium

EAST ASIA AND THE PACIFIC

Australia:
Southern Cross undersea cable landing, Brookvale, Australia
Southern Cross undersea cable landing, Sydney, Australia
Manganese – Battery grade, natural; battery grade, synthetic; chemical grade; ferro; metallurgical grade
Nickel Mines Maybe Faulding Mulgrave Victoria, Australia:
Manufacturing facility for Midazolam injection. Mayne Pharma (fill/finish), Melbourne, Australia: Sole suppliers of Crotalid Polyvalent Antivenin (CroFab).

China:
C2C Cable Network undersea cable landing, Chom Hom Kok, Hong Kong
C2C Cable Network undersea cable landing Shanghai, China
China-US undersea cable landing, Chongming, China
China-US undersea cable landing Shantou, China
EAC undersea cable landing Tseung Kwan O, Hong Kong
FLAG/REACH North Asia Loop undersea cable landing Tong Fuk, Hong Kong
Hydroelectric Dam Turbines and Generators Fluorspar (Mine)
Germanium Mine
Graphite Mine
Rare Earth Minerals/Elements Tin Mine and Plant Tungsten – Mine and Plant Polypropylene Filter Material for N-95 Masks
Shanghai Port
Guangzhou Port
Hong Kong Port
Ningbo Port
Tianjin Port

Fiji:
Southern Cross undersea cable landing, Suva, Fiji

Indonesia:
Tin Mine and Plant Straits of Malacca

Japan:
C2C Cable Network undersea cable landing, Chikura, Japan
C2C Cable Network undersea cable landing, Shima, Japan
China-US undersea cable, Okinawa, Japan
EAC undersea cable landing Ajigaura, Japan
EAC undersea cable landing Shima, Japan
FLAG/REACH North Asia Loop undersea cable landing Wada, Japan
FLAG/REACH North Asia Loop undersea cable landing Wada, Japan
Japan-US undersea cable landing, Maruyama, Japan
Japan-US undersea cable landing Kitaibaraki, Japan
KJCN undersea cable landing Fukuoka, Japan
KJCN undersea cable landing Kita-Kyushu, Japan
Pacific Crossing-1 (PC-1) undersea cable landing Ajigaura, Japan
Pacific Crossing-1 (PC-1) undersea cable landing Shima, Japan
Tyco Transpacific undersea cable landing, Toyohashi, Japan
Tyco Transpacific undersea cable landing Emi, Japan
Hitachi, Hydroelectric Dam Turbines and Generators
Port of Chiba
Port of Kobe
Port of Nagoya
Port of Yokohama
Iodine Mine
Metal Fabrication Machines Titanium Metal (Processed) Biken, Kanonji City, Japan
Hitachi Electrical Power Generators and Components Large AC Generators above 40 MVA

Malaysia:
Straits of Malacca

New Zealand:
Southern Cross undersea cable landing, Whenuapai, New Zealand
Southern Cross undersea cable landing, Takapuna, New Zealand

Philippines:
C2C Cable Network undersea cable landing, Batangas, Philippines
EAC undersea cable landing Cavite, Philippines

Republic of Korea:
C2C Cable Network undersea cable landing, Pusan, Republic of Korea.
EAC undersea cable landing Shindu-Ri, Republic of Korea
FLAG/REACH North Asia Loop undersea cable landing Pusan, Republic of Korea
KJCN undersea cable landing Pusan, Republic of Korea
Hitachi Large Electric Power Transformers 230 – 500 kV
Busan Port

Singapore:
C2C Cable Network undersea cable landing, Changi, Singapore
EAC undersea cable landing Changi North, Singapore
Port of Singapore
Straits of Malacca

Taiwan:
C2C Cable Network undersea cable landing, Fangshan, Taiwan
C2C Cable Network undersea cable landing, Tanshui, Taiwan
China-US undersea cable landing Fangshan, Taiwan
EAC undersea cable landing Pa Li, Taiwan
FLAG/REACH North Asia Loop undersea cable landing Toucheng, Taiwan
Kaohsiung Port

EUROPE AND EURASIA

Europe

(Unspecified):
Metal Fabrication Machines: Small number of Turkish companies (Durma, Baykal, Ermaksan)

Austria:
Baxter AG, Vienna, Austria: Immune Globulin Intravenous (IGIV)
Octapharma Pharmazeutika, Vienna, Austria: Immune Globulin Intravenous (IGIV)

Azerbaijan:
Sangachal Terminal
Baku-Tbilisi-Ceyhan Pipeline

Belarus:
Druzhba Oil Pipeline

Belgium:
Germanium Mine
Baxter SA, Lessines, Belgium: Immune Globulin Intravenous (IGIV)
Glaxo Smith Kline, Rixensart, Belgium: Acellular Pertussis Vaccine Component
GlaxoSmithKline Biologicals SA, Wavre, Belgium: Acellular Pertussis Vaccine Component
Port of Antwerp

Denmark:
TAT-14 undersea cable landing, Blaabjerg, Denmark
Bavarian Nordic (BN), Hejreskovvej, Kvistgard, Denmark: Smallpox Vaccine
Novo Nordisk Pharmaceuticals, Inc. Bagsvaerd, Denmark: Numerous formulations of insulin
Novo Nordisk Insulin Manufacturer: Global insulin supplies
Statens Serum Institut, Copenhagen, Denmark: DTaP (including D and T components) pediatric version

France:
APOLLO undersea cable, Lannion, France
FA-1 undersea cable, Plerin, France
TAT-14 undersea cable landing St. Valery, France
Sanofi-Aventis Insulin Manufacturer: Global insulin supplies Foot and Mouth Disease Vaccine finishing
Alstrom, Hydroelectric Dam Turbines and Generators
Alstrom Electrical Power Generators and Components
EMD Pharms Semoy, France: Cyanokit Injection
GlaxoSmithKline, Inc. Evreux, France: Influenza neurominidase inhibitor
RELENZA (Zanamivir) Diagast, Cedex, France: Olympus (impacts blood typing ability)
Genzyme Polyclonals SAS (bulk), Lyon, France: Thymoglobulin
Sanofi Pasteur SA, Lyon, France: Rabies virus vaccine

Georgia:
Baku-Tbilisi-Ceyhan Pipeline

Germany:
TAT-14 undersea cable landing, Nodren, Germany.
Atlantic Crossing-1 (AC-1) undersea cable landing Sylt, Germany
BASF Ludwigshafen: World’s largest integrated chemical complex
Siemens Erlangen: Essentially irreplaceable production of key chemicals
Siemens, GE, Hydroelectric Dam Turbines and Generators
Draeger Safety AG & Co., Luebeck, Germany: Critical to gas detection capability
Junghans Fienwerktechnik Schramberg, Germany: Critical to the production of mortars
TDW-Gasellschaft Wirksysteme, Schroebenhausen, Germany: Critical to the production of the Patriot Advanced Capability Lethality Enhancement Assembly
Siemens, Large Electric Power Transformers 230 – 500 kV
Siemens, GE Electrical Power Generators and Components
Druzhba Oil Pipeline Sanofi Aventis Frankfurt am Main, Germany: Lantus Injection (insulin)
Heyl Chemish-pharmazeutische Fabrik GmbH: Radiogardase (Prussian blue)
Hameln Pharmaceuticals, Hameln, Germany: Pentetate Calcium Trisodium (Ca DTPA) and Pentetate Zinc Trisodium (Zn DTPA) for contamination with plutonium, americium, and curium IDT
Biologika GmbH, Dessau Rossiau, Germany: BN Small Pox Vaccine.
Biotest AG, Dreiech, Germany: Supplier for TANGO (impacts automated blood typing ability) CSL
Behring GmbH, Marburg, Germany: Antihemophilic factor/von Willebrand factor
Novartis Vaccines and Diagnostics GmbH, Marburg, Germany: Rabies virus vaccine
Vetter Pharma Fertigung GmbH & Co KG, Ravensburg, Germany (filling): Rho(D) IGIV
Port of Hamburg

Ireland:
Hibernia Atlantic undersea cable landing, Dublin Ireland
Genzyme Ireland Ltd. (filling), Waterford, Ireland: Thymoglobulin

Italy:
Glaxo Smith Kline SpA (fill/finish), Parma, Italy: Digibind (used to treat snake bites)
Trans-Med gas pipeline

Netherlands:
Atlantic Crossing-1 (AC-1) undersea cable landing Beverwijk, Netherlands
TAT-14 undersea cable landing, Katwijk, Netherlands
Rotterdam Port

Norway:
Cobalt Nickel Mine

Poland:
Druzhba Oil Pipeline

Russia:
Novorossiysk Export Terminal
Primorsk Export Terminal.
Nadym Gas Pipeline Junction: The most critical gas facility in the world
Uranium Nickel Mine: Used in certain types of stainless steel and superalloys
Palladium Mine and Plant Rhodium

Spain:
Strait of Gibraltar
Instituto Grifols, SA, Barcelona, Spain: Immune Globulin Intravenous (IGIV)
Maghreb-Europe (GME) gas pipeline, Algeria

Sweden:
Recip AB Sweden: Thyrosafe (potassium iodine)

Switzerland:
Hoffman-LaRoche, Inc. Basel, Switzerland: Tamiflu (oseltamivir)
Berna Biotech, Berne, Switzerland: Typhoid vaccine CSL
Behring AG, Berne, Switzerland: Immune Globulin Intravenous (IGIV)

Turkey:
Metal Fabrication Machines: Small number of Turkish companies (Durma, Baykal, Ermaksan)
Bosporus Strait
Baku-Tbilisi-Ceyhan Pipeline

Ukraine:
Manganese – Battery grade, natural; battery grade, synthetic; chemical grade; ferro; metallurgical grade

United Kingdom:
Goonhilly Teleport, Goonhilly Downs, United Kingdom
Madley Teleport, Stone Street, Madley, United Kingdom
Martelsham Teleport, Ipswich, United Kingdom
APOLLO undersea cable landing Bude, Cornwall Station, United Kingdom
Atlantic Crossing-1 (AC-1) undersea cable landing Whitesands Bay
FA-1 undersea cable landing Skewjack, Cornwall Station
Hibernia Atlantic undersea cable landing, Southport, United Kingdom
TAT-14 undersea cable landing Bude, Cornwall Station, United Kingdom
Tyco Transatlantic undersea cable landing, Highbridge, United Kingdom
Tyco Transatlantic undersea cable landing, Pottington, United Kingdom.
Yellow/Atlantic Crossing-2 (AC-2) undersea cable landing Bude, United Kingdom
Foot and Mouth Disease Vaccine finishing
BAE Systems (Operations) Ltd., Presont, Lancashire, United Kingdom: Critical to the F-35 Joint Strike Fighter
BAE Systems Operations Ltd., Southway, Plymouth Devon, United Kingdom: Critical to extended range guided munitions
BAE Systems RO Defense, Chorley, United Kingdom: Critical to the Joint Standoff Weapon (JSOW) AGM-154C (Unitary Variant)
MacTaggart Scott, Loanhead, Edinburgh, Lothian, Scotland, United Kingdom: Critical to the Ship Submersible Nuclear (SSN)

NEAR/MIDDLE EAST
Djibouti:
Bab al-Mendeb: Shipping lane is a critical supply chain node

Egypt:
‘Ayn Sukhnah-SuMEd Receiving Import Terminal
‘Sidi Kurayr-SuMed Offloading Export Terminal
Suez Canal

Iran:
Strait of Hormuz
Khark (Kharg) Island
Sea Island Export Terminal
Khark Island T-Jetty

Iraq:
Al-Basrah Oil Terminal

Israel:
Rafael Ordnance Systems Division, Haifa, Israel: Critical to Sensor Fused Weapons (SFW), Wind Corrected Munitions Dispensers (WCMD), Tail Kits, and batteries

Kuwait:
Mina’ al Ahmadi Export Terminal

Morocco:
Strait of Gibraltar
Maghreb-Europe (GME) gas pipeline, Morocco

Oman:
Strait of Hormuz

Qatar:
Ras Laffan Industrial Center: By 2012 Qatar will be the largest source of imported LNG to U.S.

Saudi Arabia:
Abqaiq Processing Center: Largest crude oil processing and stabilization plant in the world
Al Ju’aymah Export Terminal: Part of the Ras Tanura complex
As Saffaniyah Processing Center
Qatif Pipeline Junction
Ras at Tanaqib Processing Center
Ras Tanura Export Terminal
Shaybah Central Gas-oil Separation Plant

Tunisia:
Trans-Med Gas Pipeline

United Arab Emirates (UAE):
Das Island Export Terminal
Jabal Zannah Export Terminal
Strait of Hormuz

Yemen:
Bab al-Mendeb: Shipping lane is a critical supply chain node

SOUTH AND CENTRAL ASIA

Kazakhstan:
Ferrochromium Khromtau Complex, Kempersai, (Chromite Mine)

India:
Orissa (chromite mines) and Karnataka (chromite mines)
Generamedix Gujurat, India: Chemotherapy agents, including florouracil and methotrexate

WESTERN HEMISPHERE

Argentina:
Foot and Mouth Disease Vaccine finishing

Bermuda:
GlobeNet (formerly Bermuda US-1 (BUS-1) undersea cable landing Devonshire, Bermuda

Brazil:
Americas-II undersea cable landing Fortaleza, Brazil
GlobeNet undersea cable landing Fortaleza, Brazil
GlobeNet undersea cable landing Rio de Janeiro, Brazil
Iron Ore from Rio Tinto Mine Manganese – Battery grade, natural; battery grade, synthetic; chemical grade; ferro; metallurgical grade Niobium (Columbium), Araxa,
Minas Gerais State (mine)
Ouvidor and Catalao I,
Goias State: Niobium

Chile:
Iodine Mine

Canada:
Hibernia Atlantic undersea cable landing Halifax , Nova Scotia, Canada
James Bay Power Project, Quebec: monumental hydroelectric power development
Mica Dam, British Columbia: Failure would impact the Columbia River Basin.
Hydro Quebec, Quebec: Critical irreplaceable source of power to portions of Northeast U. S.
Robert Moses/Robert H. Saunders Power, Ontario: Part of the St. Lawrence Power Project, between Barnhart Island, New York, and Cornwall, Ontario
Seven Mile Dam, British Columbia: Concrete gravity dam between two other hydropower dams along the Pend d’Oreille River
Pickering Nuclear Power Plant, Ontario, Canada
Chalk River Nuclear Facility, Ontario: Largest supplier of medical radioisotopes in the world
Hydrofluoric Acid Production Facility, Allied Signal, Amherstburg, Ontario
Enbridge Pipeline Alliance Pipeline: Natural gas transmission from Canada
Maritime and Northeast Pipeline: Natural gas transmission from Canada
Transcanada Gas: Natural gas transmission from Canada
Alexandria Bay POE, Ontario: Northern border crossing
Ambassador Bridge POE, Ontario: Northern border crossing
Blaine POE, British Columbia: Northern border crossing
Blaine Washington Rail Crossing, British Columbia
Blue Water Bridge POE, Ontario: Northern border crossing
Champlain POE, Quebec: Northern border crossing
CPR Tunnel Rail Crossing, Ontario (Michigan Central Rail Crossing)
International Bridge Rail Crossing, Ontario
International Railway Bridge Rail Crossing
Lewiston-Queenstown POE, Ontario: Northern border crossing
Peace Bridge POE, Ontario: Northern border crossing
Pembina POE, Manitoba: Northern border crossing
North Portal Rail Crossing, Saskatchewan
St. Claire Tunnel Rail Crossing, Ontario
Waneta Dam, British Columbia: Earthfill/concrete hydropower dam
Darlington Nuclear Power Plant, Ontario, Canada.
E-ONE Moli Energy, Maple Ridge, Canada: Critical to production of various military application electronics
General Dynamics Land Systems – Canada, London Ontario, Canada: Critical to the production of the Stryker/USMC LAV Vehicle Integration
Raytheon Systems Canada Ltd.
ELCAN Optical Technologies Division, Midland, Ontario, Canada: Critical to the production of the AGM-130 Missile
Thales Optronique Canada, Inc., Montreal, Quebec: Critical optical systems for ground combat vehicles
Germanium Mine Graphite Mine
Iron Ore Mine
Nickel Mine
Niobec Mine, Quebec, Canada: Niobium Cangene, Winnipeg, Manitoba:
Plasma Sanofi Pasteur Ltd., Toronto, Canada: Polio virus vaccine
GlaxoSmithKile Biologicals, North America, Quebec, Canada: Pre-pandemic influenza vaccines

French Guiana:
Americas-II undersea cable landing Cayenne, French Guiana

Martinique:
Americas-II undersea cable landing Le Lamentin, Martinique

Mexico:
FLAG/REACH North Asia Loop undersea cable landing Tijuana, Mexico
Pan-American Crossing (PAC) undersea cable landing Mazatlan, Mexico
Amistad International Dam: On the Rio Grande near Del Rio, Texas and Ciudad Acuna, Coahuila, Mexico
Anzalduas Dam: Diversion dam south of Mission, Texas, operated jointly by the U.S. and Mexico for flood control Falcon International Dam: Upstream of Roma, Texas and Miguel Aleman, Tamaulipas, Mexico
Retamal Dam: Diversion dam south of Weslaco, Texas, operated jointly by the U.S. and Mexico for flood control
GE Hydroelectric Dam Turbines and Generators: Main source for a large portion of larger components
Bridge of the Americas: Southern border crossing
Brownsville POE: Southern border crossing
Calexico East POE: Southern border crossing
Columbia Solidarity Bridge: Southern border crossing
Kansas City Southern de Mexico (KCSM) Rail Line, (Mexico)
Nogales POE: Southern border crossing
Laredo Rail Crossing
Eagle Pass Rail Crossing
Otay Mesa Crossing: Southern border crossing
Pharr International Bridge: Southern border crossing
World Trade Bridge: Southern border crossing
Ysleta Zaragosa Bridge: Southern border crossing
Hydrofluoric Acid Production Facility
Graphite Mine
GE Electrical Power Generators and Components
General Electric, Large Electric Power Transformers 230 – 500 kV

Netherlands Antilles:
Americas-II undersea cable landing Willemstad, Netherlands Antilles.

Panama:
FLAG/REACH North Asia Loop undersea cable landing Fort Amador, Panama
Panama Canal

Peru:
Tin Mine and Plant

Trinidad and Tobago:
Americas-II undersea cable landing
Port of Spain
Atlantic LNG: Provides 70% of U.S. natural gas import needs

Venezuela:
Americas-II undersea cable landing Camuri, Venezuela
GlobeNet undersea cable landing, Punta Gorda, Venezuela
GlobeNet undersea cable landing Catia La Mar, Venezuela
GlobeNet undersea cable landing Manonga, Venezuela